Gujarat High Court
Barvala Nagar Palika Through Chief ... vs Raiyaben Kalubhai Galechal on 14 March, 2023
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
NEUTRAL CITATION
C/LPA/1281/2022 ORDER DATED: 14/03/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1281 of 2022
In
R/SPECIAL CIVIL APPLICATION NO. 7759 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In
R/LETTERS PATENT APPEAL NO. 1281 of 2022
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BARVALA NAGAR PALIKA THROUGH CHIEF OFFICER OF BARVALA
MUNICIPALITY
Versus
RAIYABEN KALUBHAI GALECHAL
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Appearance:
MR LAKHPATSINH DABHI(2289) for the Appellant(s) No. 1
ANURADHA G RATHOD(7717) for the Respondent(s) No. 1
MR GK RATHOD(2386) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 14/03/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
1. The present Letters Patent Appeal is filed by the appellant - original petitioner under Clause 15 of the Letters Patent challenging the impugned oral order dated 04.08.2022 passed by the learned Single Judge in Special Civil Application No.7759 of 2019 whereby the learned Single Judge has dismissed the petition.
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NEUTRAL CITATION C/LPA/1281/2022 ORDER DATED: 14/03/2023 undefined
2. The factual matrix of the present case is as under:-
2.1 The respondent herein approached the Labour Court inter alia alleging that she was working as a Sweeper for the last five years under the petitioner. A statement of claim was filed at Exhibit 6 on 29.12.2000. During the pendency of the proceedings before the Labour Court, the petitioner - appellant herein did not remain present and, therefore, there was no option for the Labour Court but to proceed with the Reference ex-parte and ultimately, the Labour Court passed an award on 20.09.2002. It is pertinent to note that the notice issued by the Labour Court was duly served to the Nagarpalika (the then Gram Panchayat). 2.2 Thereafter, the petitioner submitted Misc. Application No.249 of 2004 under Rule 26A of the Industrial Disputes (Gujarat) Rules (hereinafter be referred to as "the Rules"). As there was delay of 652 days in preferring the said Misc.
Application, the petitioner also filed separate application for condonation of delay. The concerned Labour Court dismissed the application for condonation of delay vide order dated 22.09.2006 Page 2 of 14 Downloaded on : Sun Sep 17 22:40:45 IST 2023 NEUTRAL CITATION C/LPA/1281/2022 ORDER DATED: 14/03/2023 undefined on the ground that the petitioner had failed to show sufficient cause for not preferring the application under Section 26A of the Rules.
2.3 It is revealed from the record that thereafter, once again, the petitioner filed Misc. Application No.160 of 2015 in Reference (LCA) Case No.1865 of 2000. There was delay of 13 years caused in preferring the said application and, therefore, the concerned Labour Court vide order dated 01.02.2016 rejected the said application which was filed for condonation of delay. 2.4 The petitioner, therefore, filed the captioned petition before this Court in which the petitioner had prayed the following reliefs.
"A. Admit this petition.
B. Allow this petition by issuing a writ of mandamus or
any other appropriate writ, order or direction by quashing and set aside the judgment and award dated 20.09.2002 passed in Reference (L.C.A.) Case No.1865 of 2000 as well as the judgment and award dated 01.02.2016 passed in Misc. Application No.160 of 2015 in Reference (L.C.A.) Case No.1865 of 2000.
C. Pending admission hearing and till final disposal of the present petition may be pleased to stay the execution, implementation, operation of the order dated 20.09.2002 Page 3 of 14 Downloaded on : Sun Sep 17 22:40:45 IST 2023 NEUTRAL CITATION C/LPA/1281/2022 ORDER DATED: 14/03/2023 undefined passed in Reference (L.C.A.) Case No.1865 of 2000 as well as the judgment and award dated 01.02.2016 passed in Misc. Application No.160 of 2015 in Reference (L.C.A.) Case No.1865 of 2000.
D. Grant such other and further reliefs in the facts and circumstances of this case."
2.5 The learned Single Judge vide oral order dated 04.08.2022 dismissed the petition filed by the petitioner - appellant herein and, therefore, the appellant has filed the present appeal.
3. Heard Mr.L. B. Dabhi, learned advocate appearing for the appellant herein and Mr.G. K. Rathod, learned advocate appearing for the respondent herein.
4. Mr.Dabhi, learned advocate appearing for the appellant has assailed the impugned order passed by the learned Single Judge mainly on the ground that before the Assistant Labour Commissioner, when the dispute was raised by the respondent, the petitioner has specifically taken a stand that the respondent was never an employee of the then Panchayat (present Nagarpalika) and, therefore, there is no question of reinstatement of the respondent. It is submitted by learned advocate for the appellant that though the said reply was sent to Page 4 of 14 Downloaded on : Sun Sep 17 22:40:45 IST 2023 NEUTRAL CITATION C/LPA/1281/2022 ORDER DATED: 14/03/2023 undefined the Assistant Labour Commissioner, the dispute was referred to the Labour Court, Ahmedabad where Reference (L.C.A.) Case No.1865 of 2000 was registered. It is also submitted by the learned advocate for the appellant that the officer of the petitioner / administrator could not remain present before the Labour Court and, therefore, the Labour Court passed an ex- parte award. Learned advocate for the appellant has submitted that when the petitioner came to know about the ex-parte award passed by the Labour Court, the petitioner, immediately, filed an application under Rule 26A of the Rules for setting aside the ex- parte award, however, there was a delay of 652 days caused in filing the said application and, therefore, the separate application came to be filed for condonation of delay and the Labour Court dismissed the said application for condonation of delay. It is submitted by learned advocate for the appellant that thereafter, the petitioner filed another application for condonation of delay being Misc. Application No.160 of 2015, however, the said application was also dismissed by the Labour Court vide order dated 01.02.2016 and, therefore, the petitioner preferred the captioned petition.
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NEUTRAL CITATION C/LPA/1281/2022 ORDER DATED: 14/03/2023 undefined 4.1 Mr.Dabhi, learned advocate for the appellant would contend that the respondent had not disclosed the correct facts before the Labour Court and material facts were suppressed by her and, therefore, because of the fraud committed by the respondent, the Labour Court had passed ex-parte order against the petitioner and, therefore, looking to the facts of the present case, the Labour Court ought to have condoned the delay caused in filing the application under Rule 26A of the Rules and, thereafter, the Labour Court ought to have quashed and set aside the ex-parte award. It is submitted by the learned advocate for the appellant that the petitioner has specifically contended about the fraud committed by the respondent before the learned Single Judge and the petitioner has also placed reliance upon the various decisions of the Hon'ble Supreme Court on the aspect of fraud. It is submitted by the learned advocate for the appellant that the learned Single Judge has not properly appreciated the decisions upon which the reliance is placed by the petitioner and, thereby, dismissed the petition filed by the petitioner and, therefore, the petitioner has preferred the present appeal. Page 6 of 14 Downloaded on : Sun Sep 17 22:40:45 IST 2023
NEUTRAL CITATION C/LPA/1281/2022 ORDER DATED: 14/03/2023 undefined Learned advocate for the appellant has placed reliance upon the following decisions:
1. General Manager, Electrical Rengali Hydro Electric Project, Orissa Vs. Sri Giridhari Sahu reported in 2910 (10) SCC 695;
2. Punjab Urban Planning and Development Authority Vs. Karamjit Singh reported in 2919 (16) SCC 782;
3. Ganpatbhai Mahijibhai Solanki Vs. State of Gujarat reported in 2008 (12) SCC 353;
4. Ajit Kr. Bhuyan Vs. Debajit Das reported in 2019 (12) SCC 275;
5. Inayatkhan Mohmed Ajan Khan Vs. State of Gujarat reported in 1976 GLR 285;
6. Commissioner of Customs Vs. Candid Enterprises reported in 2002 (9) SCC 764;
4.2 Once again learned advocate for the appellant has placed reliance upon the decisions of the Hon'ble Supreme Court which were cited before the learned Single Judge. Learned advocate for Page 7 of 14 Downloaded on : Sun Sep 17 22:40:45 IST 2023 NEUTRAL CITATION C/LPA/1281/2022 ORDER DATED: 14/03/2023 undefined the appellant has referred the relevant paragraphs of the said decisions, the copies of which are separately provided to this Court at the time of hearing of this appeal. It is submitted by learned advocate for the appellant that once the award has been obtained by fraud, the same cannot be enforced and, therefore, this Court may quash and set aside the ex-parte award passed by the Labour Court and set aside the impugned order passed by the learned Single Judge. It is submitted by the learned advocate for the appellant that the petitioner is ready and willing to deposit the reasonable amount of cost and, therefore, it is urged that the Labour Court be directed to decide the issue on merits after giving an opportunity of hearing to the petitioner.
5. On the other hand, Mr.G. K. Rathod, learned advocate for the respondent has opposed this appeal. Learned advocate for the respondent has referred the reasoning recorded by the learned Single Judge and submitted that at the initial stage as there was gross delay of 652 days in preferring the said Misc.
Application and, thereafter, the delay of 13 years in filing the application before the Labour Court, the learned Single Judge has Page 8 of 14 Downloaded on : Sun Sep 17 22:40:45 IST 2023 NEUTRAL CITATION C/LPA/1281/2022 ORDER DATED: 14/03/2023 undefined rightly dismissed the petition filed by the petitioner and, therefore, no interference is required in the present appeal. 5.1 Mr.Rathod, learned advocate for the respondent would contend that the decisions of the Hon'ble Supreme Court upon which the reliance is placed by the learned advocate for the appellant would not be applicable to the facts of the present case as the appellant - petitioner has not pleaded about the fraud before the Labour Court in the application filed under Rule 26A of the Rules. It is, therefore, urged that aforesaid contention raised by the petitioner is misconceived.
6. Having heard learned advocates appearing on behalf of both the parties and having gone through the materials placed on record, it would emerge that the respondent raised the dispute before the Assistant Labour Commissioner that she is illegally terminated from the service without following due procedure of law provided under the provisions of the Industrial Disputes Act, 1947. It is further revealed that the petitioner submitted the reference before the Assistant Labour Commissioner, however, the Assistant Labour Commissioner was Page 9 of 14 Downloaded on : Sun Sep 17 22:40:45 IST 2023 NEUTRAL CITATION C/LPA/1281/2022 ORDER DATED: 14/03/2023 undefined not satisfied with the same and, therefore, as the dispute was raised, the same was referred to the Labour Court. It is not in dispute that the notice issued by the Labour Court was duly served to the petitioner. In spite of that, nobody remained present before the Labour Court on behalf of the petitioner and, therefore, the Labour Court, after considering the evidence produced by the respondent, passed an ex-parte award on 20.09.2002. The copy of the said award is placed on record at page no.23 of the compilation. It would further emerge from the record that the petitioner, thereafter, filed an application under Rule 26A of the Rules for quashing and setting aside the ex-parte award, however, there was a delay of 652 days caused in preferring the said application and, therefore, separate application for condonation of delay was filed by the petitioner. It is pertinent to note that the Labour Court vide order dated 22.09.2006 dismissed the application filed for condonation of delay and the petitioner has not challenged the said order dated 22.09.2006 passed by the Labour Court. At this stage, it is relevant to note that after a period of 13 years from the date of passing of the ex-parte award, another application came to be Page 10 of 14 Downloaded on : Sun Sep 17 22:40:45 IST 2023 NEUTRAL CITATION C/LPA/1281/2022 ORDER DATED: 14/03/2023 undefined filed by the petitioner i.e. Misc. Application No.160 of 2015 for condonation of delay of 13 years. The copy of the said application is placed on record at page No.34 of the compilation. We have carefully perused the averments made in the application. It reveals that the petitioner has not disclosed about the order date 22.09.2006 passed by the Labour Court whereby the application for condonation of delay filed by the petitioner came to be dismissed by the Labour Court and by not disclosing the correct facts before the Labour Court, once again separate application was filed by the petitioner for condonation of delay of 13 years. The Labour Court vide order dated 01.02.2016 rejected the said application and, therefore, the petitioner filed the captioned petition. If the relief/s, as prayed for, as observed hereinabove are carefully seen, it reveals that the petitioner has not challenged the order dated 22.09.2006 passed by the Labour Court in Misc. Application No.249 of 2004 and the said order attained finality.
7. The only ground urged by the learned advocate for the appellant in the present appeal is that as the respondent has Page 11 of 14 Downloaded on : Sun Sep 17 22:40:45 IST 2023 NEUTRAL CITATION C/LPA/1281/2022 ORDER DATED: 14/03/2023 undefined played fraud by not disclosing the correct facts before the Labour Court and thereby the Labour Court has passed an ex-parte award, the Labour Court as well as learned Single Judge ought to have condoned the delay in filing the restoration application / for quashing and setting aside the ex-parte award and the matter was required to be decided on its own merits. Learned advocate for the appellant has placed reliance upon the various decisions rendered by the Hon'ble Supreme Court as observed hereinabove. However, it is pertinent to note that the petitioner has not made any averments about suppression of facts made by the respondent before the Labour Court in an application filed under Rule 26A of the Rules. There is no allegation in the said application with regard to fraud committed by the respondent. Learned advocate for the appellant has also fairly submitted that even in the petition filed before this Court, specific averments are not made with regard to the fraud committed by the respondent before the Labour Court by not disclosing the correct facts. Thus, it appears that for the first time, during the course of the arguments, learned advocate for the appellant has taken the said contention and placed reliance upon the decisions of the Page 12 of 14 Downloaded on : Sun Sep 17 22:40:45 IST 2023 NEUTRAL CITATION C/LPA/1281/2022 ORDER DATED: 14/03/2023 undefined Hon'ble Supreme Court. We are of the view that the decisions upon which the reliance is placed by the learned advocate for the appellant would not render any assistance to the petitioner in the facts of the present case as no averments or allegation of fraud has been made before the Labour Court while filing the application under Rule 26A of the rules or in the memo of petition. We are of the opinion that the decisions relied upon by the learned advocate for the appellant are not applicable to the facts of the present case.
8. It is relevant to note at this stage that at every stage there was a delay in filing various proceedings before the Labour Court as well as before this Court. Once again, it is required to be noted here that after the notice was served to the petitioner before the Labour Court in the reference proceedings, the petitioner did not remain present and, therefore, an ex-parte order was passed on 20.09.2002 by the Labour Court and, thereafter, an application for restoration / for quashing the award under Rule 26A of the Rules came to be filed after about 652 days. The said application for condonation of delay was Page 13 of 14 Downloaded on : Sun Sep 17 22:40:45 IST 2023 NEUTRAL CITATION C/LPA/1281/2022 ORDER DATED: 14/03/2023 undefined dismissed by the Labour Court on 22.09.2006 and, thereafter, once again the petitioner filed an application for condonation of delay of 13 years in filing application for setting aside ex-parte award. The said application also came to be dismissed by the Labour Court on 01.02.2016 and after a period of three years, the captioned petition was filed in January 2019. Thus, looking to the conduct of the petitioner, we are of the view that the petitioner is not interested in the proceeding the case seriously and looking to the overall facts and circumstances of the case, we are not inclined to interfere with the impugned order passed by the learned Single Judge. Accordingly, the present appeal is dismissed. Notice is discharged.
9. The connected civil application shall stand disposed of accordingly.
Sd/-
(VIPUL M. PANCHOLI, J) Sd/-
(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 14 of 14 Downloaded on : Sun Sep 17 22:40:45 IST 2023