Gujarat High Court
Maheshbhai Punjabhai Thakor vs Pramod Trading Company & Anr. ... on 20 October, 2015
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/MCA/730/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC. CIVIL APPLICATION (FOR REVIEW) NO. 730 of 2015
In
SPECIAL CIVIL APPLICATION NO. 4242 of 2014
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MAHESHBHAI PUNJABHAI THAKOR
S/O PUNJABHAI THAKOR ....Applicant
Versus
PRAMOD TRADING COMPANY & ANR. ....Opponents
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Appearance:
MR SUBRAMANIAM IYER, ADVOCATE for the Applicant
MR NILESH A PANDYA, ADVOCATE for the Opponent No. 1
MR PARITOSH CALLA, ADVOCATE for the Opponent No. 2
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CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY
Date : 20/10/2015
ORAL ORDER
1. This is an application for review of the order dated 17.10.2014 passed by this Court in Special Civil Application No. 4242 of 2014. The said order reads as under.
"1. Challenge in this petition is made by the Employer to the order passed by the Labour Court, Vadodara dated 19.01.2012 in Recovery Application No.178 of 2008. By the said order, the Labour Court has restrained the petitioner from availing the service of an advocate, since the representative of the Union has raised objection in that regard.Page 1 of 6
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2. Learned advocate for the petitioner has submitted that there is no employee - employer relationship between the petitioner and the respondent and inspite of that, the respondent had projected himself to be the workman of the petitioner and further that though there is no award in his favour, he has straightway filed Recovery Application invoking provisions of Section 33C(2) of the Industrial Disputes Act,1947, wherein apart from the facts, even the legal submissions are required to be made before the Labour Court and therefore the assistance of an Advocate is required by the petitioner. It is further submitted that, on behalf of the respondent a legally trained mind like the Union representative is appearing and thus, though the petitioner has good case on merits, he may not be able to put his case effectively before the Labour Court. It is submitted that, under these circumstances, on behalf of the petitioner appearance of an Advocate was filed which is objected by the other side and under these circumstances, impugned order is passed by the Labour Court, which may be interfered with.
3. On the other hand, learned advocate for the respondent has submitted that Section 36(4) of the Industrial Disputes Act, 1947 Page 2 of 6 HC-NIC Page 2 of 6 Created On Tue Oct 27 00:27:29 IST 2015 C/MCA/730/2015 ORDER is quite clear and therefore there was no occasion for the Labour Court to grant sanction ignoring the objection of the respondent and therefore Labour Court has not committed any error. Reliance is placed on the decisions of the learned Single Judge and the Division Bench in the case of J.B.Transport Company vs. Shankarlal @ Mavaram Nathuji Patel in Special Civil Application No.2687 of 1998 dated 22.07.1998 as confirmed by the Division Bench in the Letters Patent Appeal No.1101 of 1998 vide order dated 09.12.1998. It is submitted that this petition be dismissed.
4. Having heard learned advocates for the respective parties and having gone through the material on record, this Court finds that, the petitioner is a small trader. He cannot be expected to have any officer in his organisation looking after legal affairs, nor it is mandatory for him to be a member of some Association which may represent his case. Denial of an opportunity to the petitioner to put his case before the Court through an Advocate, in the present case, has resulted in a situation where he is unable to put his case as effectively as respondent would be, and this has resulted in inequality before law, the correcting measure of which was envisaged by enacting Page 3 of 6 HC-NIC Page 3 of 6 Created On Tue Oct 27 00:27:29 IST 2015 C/MCA/730/2015 ORDER Section 36(4) of the Act, and under these circumstances the petitioner needs to be given the opportunity of availing the service of an Advocate. Further, the controversy in this regard is covered by the decision of this Court in the case of Schneider Electric India Pvt. Ltd. Vs. Kailashben R. Valand reported in 2014 (2) GLR 1264 and in the case of Veer Textile vs. Babubhai and ors. Upadhyay in Special Civil Application No. 3547 of 2014 dated 17.09.2014. Considering the totality, this Court finds that, denial of opportunity to the petitioner to put his case through an Advocate has resulted in denial of reasonable opportunity to a party to the litigation to put his case before the Court as compared to the contesting party. It is this situation which needs to be corrected by this Court. For this reason, this petition needs to be allowed.
5. For the reasons recorded above, the following order is passed.
5.1 This petition is allowed.
5.2 The impugned order passed by the Labour Court, Vadodara dated 19.01.2012 in Recovery Application No.178 of 2008 is quashed and set aside.Page 4 of 6
HC-NIC Page 4 of 6 Created On Tue Oct 27 00:27:29 IST 2015 C/MCA/730/2015 ORDER 5.3 The petitioner is permitted to avail the service of an Advocate, in the proceedings of Recovery Application No.178 of 2008 before the Labour Court, Vadodara.
5.4 Rule made absolute. No order as to costs."
2. Learned advocate for the applicant has invited the attention of this Court to the order passed by the Division Bench of this Court dated 02.02.2015 recorded on Letters Patent Appeal No. 1315 of 2014 to contend that this Court may take into consideration the decision of Hon'ble the Supreme Court of India in the case of Paradip Port Trust Vs.The workmen reported in AIR 1977 SC 36, with specific reference to the paragraphs quoted in this application. It is submitted that the order dated 17.10.2014 be reviewed / recalled.
3. On the other hand, Mr. Pandya, learned advocate for the opponent has submitted that this Court has taken into consideration the peculiar facts of the matter and has permitted the petitioner-trader to avail service of the lawyer and therefore no review/order be made.
4. Having heard learned advocates for the respective parties and having gone through the material on record this Court finds that, while recording the order sought to be reviewed, this Court had taken note of the decision in the case of Schneider Electric India Pvt. Ltd. versus Kailashben R. Valand reported in 2014(2) GLR 1264, which was after considering the decision of Hon'ble the Supreme Court of India Page 5 of 6 HC-NIC Page 5 of 6 Created On Tue Oct 27 00:27:29 IST 2015 C/MCA/730/2015 ORDER in the case of Paradip Port Trust (supra). Reference can be made to Para : 4 of the decision dated 17.10.2014. Further, the facts noted in the order dated 17.10.2014 are kept in view and considering the totality, the judgment of Hon'ble the Supreme Court of India as relied by learned advocate for the applicant will not take his case any further.
5. In view of above, the order dated 17.10.2014 recorded on Special Civil Application No.4242 of 2014 need not be reviewed in any manner. This application is dismissed.
(PARESH UPADHYAY, J.) Salim/23 Page 6 of 6 HC-NIC Page 6 of 6 Created On Tue Oct 27 00:27:29 IST 2015