Gujarat High Court
Chief vs Maherajhusen on 29 April, 2011
Author: V. M. Sahai
Bench: V. M. Sahai
Gujarat High Court Case Information System
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LPA/81/2008 10/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 81 of 2008
In
SPECIAL
CIVIL APPLICATION No. 11230 of 2000
With
CIVIL
APPLICATION No. 1019 of 2008
In
LETTERS PATENT APPEAL No. 81 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE V. M. SAHAI
HONOURABLE
MR.JUSTICE G.B.SHAH
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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CHIEF
OFFICER, - Appellant(s)
Versus
MAHERAJHUSEN
LALUMIYA MALEK & 2 - Respondent(s)
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Appearance
:
MR YV SHAH for Appellant(s) :
1,
MR.HIREN M MODI for Respondent(s) : 1 - 2.
RULE SERVED for
Respondent(s) : 3,
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CORAM
:
HONOURABLE
MR.JUSTICE V. M. SAHAI
and
HONOURABLE
MR.JUSTICE G.B.SHAH
Date
: 29/04/2011
ORAL
JUDGMENT
(Per : HONOURABLE MR.JUSTICE G.B.SHAH)
1. We have heard Mr Y V Shah, learned counsel for the appellant and Mr Hiren Modi, learned counsel for the respondents No.1 & 2. The appellant, being aggrieved and dissatisfied by the impugned order dated 9.7.2007 passed by the learned Single Judge in Special Civil Application No.11230 of 2000, has preferred this Appeal.
2. The brief facts of this case are that the appellant is Dehgam Municipality duly constituted under the provisions of the Gujarat Municipality Act, 1963. The respondents were recruited as daily wager Peons and Naka Clerk in the Octroi department of the appellant Municipality and they have worked for more than 240 days in each year and the respondents were illegally retrenched from service respectively with effect from 1.1.1991 and with effect from 23.11.1992 without giving any notice.
3. The Labour Court, Ahmedabad had passed award on 25.6.1997 in Reference (LCA) No.2083 of 1993 directing the appellant to reinstate the respondents with full back wages. Being aggrieved and dissatisfied by the said ex-parte award, the appellant has challenged the same by preferring Special Civil Application No.11230 of 2000. The learned Single Judge has dismissed the said Special Civil Application vide order dated 9.7.2007 and hence the instant Letters Patent Appeal has been preferred by the present appellant.
4. Learned counsel for the appellant has vehemently submitted that the Labour Court and the learned Single Judge ought to have considered that the Registered Post with Acknowledgement Due notices were not duly served upon the appellant Municipality by the Labour Court to file written statement in both the References and no copy of statement of claims has ever been served upon the appellant Municipality and no reasonable opportunity of defence has ever been granted to the appellant Municipality before passing the ex-parte award dated 25.6.1997 in Reference (LCA) No.2024 of 1993 and Reference (LCA) No. 2084 of 1993. Learned counsel for the appellant has then submitted that respondent No.1 was appointed as daily wage peon between 23.7.1985 and 31.12.1990 for a limited period and has never worked for more than 240 days of service in any year and particularly in a preceding year from the date of alleged retrenchment and, therefore, no question of notice or notice pay and payment of retrenchment compensation arises under the Industrial Disputes Act, 1947 and, therefore, respondent No.1 has no right to claim such benefits. So far as respondent No.2 is concerned, he had worked only for 11 days during the leave vacancy and thus the impugned ex- parte award cannot be enforced against the appellant Municipality. Learned counsel for the appellant has then submitted that the ex-parte award passed by the Labour Court is grossly perverse and without jurisdiction and no evidence has been produced by the respondents to show that they had made efforts to get alternative job to mitigate the loss and not gainfully employed elsewhere and they have not filed any affidavit under section 17B of the Act. He has further submitted that the respondents have never completed 240 days' service and therefore, the appellant Municipality is not obliged to comply with the provisions of section 25F of the Act. Moreover, the Octroi department is already closed and when there is no work at all, it is practically impossible to reinstate the respondents and as the ex-parte award cannot be implemented in any circumstances, this matter should be remanded to the Labour Court to decide the Reference afresh on merits.
5. Learned counsel for the respondents has placed reliance on Rule 26A and 26B of the Industrial Disputes (Gujarat) Rules, 1966 (for short, 'the Rules') and submitted that it is already provided in the said Rules that which steps one could take from the date of knowledge of an ex parte order and as the appellant had not chosen to take the benefit of the said provision under the Rules, at this stage, the submission for remand to decide the Reference on merits afresh should not be considered.
6. We have considered the above referred rival submissions made by the learned counsel for the parties. The learned Single Judge had observed in paras 3 and 4 of order dated 9.7.2007 passed in Special Civil Application No.11230 of 2000 which reads as under:
"3. So far as the question of service of notice upon the petitioner is concerned, the petitioner, for the reasons best known to them, but for making a statement that no notices were issued to them, have not tried to file copy of the proceedings recorded by the Labour Court, copies of the Summons issued by the Labour Court and service report submitted by the process server to the Labour Court. If such documents were filed before this Court, the court, in such circumstances, at least make an inquiry that in fact, the lower court was justified or not in proceeding ex-parte. So far as the question of sufficiency of of cause is concerned, I do not think that this Court would be entitled to look into the sufficiency of the cause for absence, because, that would have been in the domain of the first court, if an application for setting aside ex-parte order / award was made before that Court.
4. So far as the merits of the matter are concerned, learned Labour Court has found and as a fact that the respondent had worked for more than 240 days in 12 calender months preceding the date of retrenchment/illegal removal. If such were unimpeachable facts and there was no controversy against the truth of the fact, the court below cannot be condemned with an allegation that it faulted in making the award."
7. Considering the above facts on record, we are unable to digest the submissions made by the learned counsel for the appellant that the learned Single Judge ought to have called for the Records & Proceedings from the Labour Court before passing the impugned order dated 9.7.2007 and to verify the allegations whether notices as required under the law were ever served upon the appellant Municipality. Under this circumstances, it is important to refer to Rule 26A and 26B of the Rules, 1966 for consideration of this case and the same are extracted as under:
"R. 26A.
Setting aside ex-parte orders, awards and reports - (1) On an application made within thirty days from the date of knowledge of an ex-parte order, award or report by the party concerned, the Board, Court, Labour Court, Tribunal or Arbitrator may, for sufficient cause; set aside after notice to the opposite party such order, award or report, as the case may be.
(2) The Board, Court, Labour Court, Tribunal, or Arbitrator may on sufficient cause being shown, extend the period referred to in sub-rule (1).
(3) An application under sub-rule, (1) shall be supported by an affidavit.
R. 26B. Stay of operation of awards - The Labour Court Tribunal or Arbitrator shall have the power to stay the operation of an award conditionally or otherwise in appropriate cases, until the application for setting aside ex-parte orders is disposed off finally."
8. If we peruse the above referred Rules, it is clear that if a party has any grudge with the ex-parte order, award or report by the Board, Court or Labour Court, Tribunal or Arbitrator had been passed then from the date of the knowledge of the said ex-parte oder showing sufficient cause one can proceed further for setting aside the said award before the relevant Board, Court, Labour Court, Tribunal or Arbitrator. But leaving all these aspects aside, the present appellant Municipality has preferred to rush to the High Court by filing Special Civil Application No.11230 of 2000. In our view, the appellant Municipality wants to shift the burden cast upon it on the High Court by submitting that the record and proceedings had not been called for by the concerned court to see that whether the notices had been duly served on the appellant Municipality or not. But the learned Single Judge has rightly observed in para 3 referred above that the appellant could have produced the relevant copies or certified copies of the record and proceedings of the trial court to meet with his case but as he has utterly failed to do so, the appellant should blame only himself and none else.
9. Learned counsel for the appellant has placed reliance on the following reported decisions of the Hon'ble the Apex Court as well as of this High Court out of which he has cited the case of HManshukumar Vidyarthi and Others v. State of Bihar and others (1997) 4 SCC 391 in which it has been held that the petitioners were not appointed to the post on daily wages in accordance with the Rules but were engaged on the basis of need of the work. Another decision in the case of Halvad Nagarpalika & Others v. Jani Dipakbhai Chandravadanbhai & Others (2003) 2 GLH 397 in which it has been held that appointments were made without following any legal procedure or statutory or recruitment policy and in that event it is not material whether the workmen have completed the service of 240 days in a year or not. The third decision on which reliance was placed by the learned counsel for the appellant is the case of Avas Vikas Sansthan & Anr. v. Avas Vikas Sansthan Engineers Assn. & Ors 2006 (3) 583 in which it has been held that where a project has been shut down due to want of funds the employer cannot by a writ of mandamus be directed to continue employing such employees. Finally the learned counsel for the appellant has relied on para 17 of a decision in the case of Ranip Nagar Palika v. Babuji Gabhaji Thakore and Ors. (2008 AIR SCW 449) on the point of remand of the case. Para 17 is extracted as under:
"17. There was need for factual adjudication on the basis of the materials adduced by the parties. That apparently has not been done. We therefore set aside the orders of the Labour Court, learned Single Judge and Division Bench of the High Court and remit the matter to the Labour Court to consider the matter afresh. It has to specifically record a finding as to whether the claim of the workmen of continuance of service is acceptable. It has also to be decided as to whether the workmen had completed 240 days of service. The decision is vital to see whether section 25F of the Act has any relevance."
10. We have carefully perused the above referred decisions and there is no dispute with the ratio laid down by the Apex Court as well as of this Court but in our considered view, the same are not of any help to the present appellant and are not required to be taken into consideration because it is the fact that the Labour Court was compelled to pass ex-parte order as referred above and moreover, the present appellant has not chosen to file restoration application under the provisions of Rule 26A and 26B of the Rules and chosen to prefer a wrong forum by filing Special Civil Application No. 11230 of 2000.
11. It is the say of the appellant that the Labour Court had never served registered A.D. Notice upon the Chief Officer of the Municipality to file written statement. We have carefully perused the award dated 25.6.1997 passed in Reference (LCA) No.2024/1993 and Reference (LCA) No.2083/1993. The learned counsel for the respondent has drawn our attention to paragraph No.3 of the said award and submitted that it has been specifically mentioned by the Presiding Officer that on behalf of first litigant i.e. Dahegam Nagarpalika the written statement in Reference (LCA) No.2024/1993 was not filed but it had filed the written statement in Reference (LCA) No.2083/1993 but the exhibit number to the said written statement had not been given because the same was filed at a very belated stage and the second litigant had taken objection for taking the said written statement on record and thus the first litigant i.e. Dahegam Municipality had remained negligent to see that the said written statement be taken on record and be exhibited but they had not taken any interest regarding the same. If we consider the above facts emerged from the record, it is clear that a totally wrong defence had been taken by the present appellant that the Labour Court had not served registered A.D. notice upon the Chief Officer of the Municipality to file written statement but it is clear that the appellant itself remained negligent and in our view he should thank itself for the same. Under the circumstances, we do not find any illegality either in the impugned order passed by the learned Single Judge or in the award passed by the Labour Court.
12. In the result, this appeal fails and is accordingly dismissed.
Civil Application No. 1019 of 2008 In view of the order passed in the main Appeal, this Civil Application No.1019 of 2008 does not survive and is accordingly disposed of. Rule is discharged. The ad-interim relief stands vacated.
[V M SAHAI, J.] [G B SHAH, J.] msp Top