Rajendra Kumar Natvarlal Joshi & 16 vs Ashoka Cotsyn & on 22 September, 2017

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Gujarat High Court

Rajendra Kumar Natvarlal Joshi & 16 vs Ashoka Cotsyn & on 22 September, 2017

Bench: K.M.Thaker

                 C/SCA/15390/2011                                                ORDER



                  IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                    SPECIAL CIVIL APPLICATION NO. 15390 of 2011


                RAJENDRA KUMAR NATVARLAL JOSHI & 16....Petitioner(s)
                                   Versus
                       ASHOKA COTSYN & 1....Respondent(s)
         Appearance:
         MR BHARAT SHAH, ADVOCATE for the Petitioner(s) No. 1 - 17
         MRS MAUNA M BHATT, ADVOCATE for the Respondent(s) No. 1
          CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
                               Date : 22/09/2017
                                          ORAL ORDER

For the reasons recorded in the order dated 25.4.2016 present petition came to be dismissed on the ground of non-prosecution. In the said order this Court recorded that:-

So far as this petition is concerned since 22.2.2016 the proceedings have been adjourned on account of one reason or another urged by the learned advocate for the petitioners.

In view of the request made by learned advocate for the petitioners on 21.3.2016 the hearing was adjourned to today.

This petition is listed at serial No. 1 in today's cause list. When the petition is called out and taken up for hearing learned advocate for the petitioners is not present.

On his behalf any request for passover or adjournment is also not made. No one has attended the hearing on behalf of the petitioners. Learned advocate for the petitioners has not filed leave note or sick note. The hearing is neglected by the petitioners.

Despite this position the Court heard Mr. Bhatt, learned Senior Counsel for the respondent with the hope that by the time Mr. Bhatt, learned Senior Counsel completes his submissions, learned advocate for the petitioner would attend the hearing or someone else would attend the hearing or atleast some request may be made. The Court heard Mr. Bhatt, learned Senior Counsel for the respondent until 11.35 a.m. however no one from the side of petitioner appeared and attended the hearing.

Having regard to the order passed by Hon'ble Apex Court in Petition(s) for Special Leave to Appeal (C) No. 1651-1652 of 2015 this Court inquired from Mr. Bhatt, learned Senior Counsel why the respondent and the petitioners have not been paid wages at par with other workmen who were paid 100% backwages and why the petitioners have been granted 50% backwages. In reply, Mr. Bhatt, learned Senior Counsel for the respondent submitted that the allegation by workmen is not true and the petitioners have not placed any material to support said allegation.

Having regard to the above facts, more particularly that no one has attended the hearing until 11.35 a.m. and any request for passover or adjournment is also not made on behalf of the petitioners, the Court deems it appropriate to dismiss the petition on the ground of non-prosecution.

In view of the submission by learned Senior Counsel for the respondent, the Court would have decided the petition on merits.

Page 1 HC-NIC Page 1 of 10 Created On Mon Oct 02 03:37:44 IST 2017 C/SCA/15390/2011 ORDER However instead of dismissing the petition on merits the petition is dismissed on the ground of non-prosecution so that if the petitioners are interested in prosecuting the petition on merits they may avail opportunity within time permissible under Rules.

For the aforesaid reasons the petition stands dismissed for non-prosecution."

Subsequently the petitioner filed Misc. Civil Application No. 1564 of 2016 with a request that the proceedings of the petition may be restored.

In the said Misc. Civil Application No. 1564 of 2016 this Court passed below quoted order on 14.6.2016:-

"1. Despite the fact that the Court has recorded, in detail, the circumstances which compelled the Court to dismiss the petition on ground of non-prosecution, the applicant has not taken care to even offer any explanation as to why the hearing was not attended on the date when the matter was scheduled and listed for hearing. Not a word is mentioned about the reason for the absence at the time of hearing. Any justification and sufficient cause to condone absence and to recall the order is not made out. At the time of hearing of this application, learned advocate for the applicant simply said that he was busy somewhere else and came to be Court in second sitting. Except the said reason, any other explanation is not offered today at the time of hearing of this application.

2. Ordinarily, in this view of the matter, the Court would dismiss the application. However, considering the fact that the burden of cost and expenses for filing fresh application and payment of court fee, etc., will fall on the petitioners the Court has refrained from passing the order rejecting the application. Instead, time to amend the application is granted.

S.O. to 20.6.2016."

On the next date i.e. on 20.6.2016 learned advocate for the applicant requested for time. Therefore vide order dated 20.6.2016 the proceedings came to be adjourned at the request of learned advocate for the applicant -

petitioner. Thereafter the Court was constrained to pass order dated 23.8.2016 which reads thus:-

In respect of main petition, i.e. Special Civil Application No.15390 of 2011, this Court passed below quoted order on 25.4.2016:-

So far as this petition is concerned since 22.2.2016 the proceedings have been adjourned on account of one reason or another urged by the learned advocate for the petitioners.

In view of the request made by learned advocate for the petitioners on Page 2 HC-NIC Page 2 of 10 Created On Mon Oct 02 03:37:44 IST 2017 C/SCA/15390/2011 ORDER 21.3.2016 the hearing was adjourned to today.

This petition is listed at serial No. 1 in today's cause list. When the petition is called out and taken up for hearing learned advocate for the petitioners is not present. On his behalf any request for passover or adjournment is also not made. No one has attended the hearing on behalf of the petitioners. Learned advocate for the petitioners has not filed leave note or sick note. The hearing is neglected by the petitioners. Despite this position the Court heard Mr. Bhatt, learned Senior Counsel for the respondent with the hope that by the time Mr. Bhatt, learned Senior Counsel completes his submissions, learned advocate for the petitioner would attend the hearing or someone else would attend the hearing or atleast some request may be made. The Court heard Mr. Bhatt, learned Senior Counsel for the respondent until 11.35 a.m. however no one from the side of petitioner appeared and attended the hearing.

In reply, Mr. Bhatt, learned Senior Counsel for the respondent submitted that the allegation by workmen is not true and the petitioners have not placed any material to support said allegation. Having regard to the above facts, more particularly that no one has attended the hearing until 11.35 a.m. and any request for passover or adjournment is also not made on behalf of the petitioners, the Court deems it appropriate to dismiss the petition on the ground of non- prosecution.

In view of the submission by learned Senior Counsel for the respondent, the Court would have decided the petition on merits. However instead of dismissing the petition on merits the petition is dismissed on the ground of non-prosecution so that if the petitioners are interested in prosecuting the petition on merits they may avail opportunity within time permissible under Rules. For the aforesaid reasons the petition stands dismissed for non- prosecution.

2. Thereafter, the petitioner preferred present application wherein it is prayed, inter alia, that:-

4(A) Your Lordships may be pleased to allow this Misc. Civil Application and pass an order to restore the Sp.C.A.No.15390/2011 to its original file which was disposed of on 25.04.2016 and be further pleased to fix the matter for next hearing at an early date.

3. In view of the fact that the application lacks even basic details, below quoted order was passed on 20.6.2016:-

Right from the first date when the application is listed before this Court, adjournments are sought on one ground or another by learned advocate for the applicants.

On previous occasion, the hearing of the application had to be adjourned because the restoration application lacked preliminary and basic averments. For the said reason, the application deserved to be rejected, however, at the request of learned advocate for the applicants, time was granted.

Today adjournment is request for on the ground of personal difficulty and it is submitted that the amendment application could not be prepared on account of personal difficulty.

It appears that the applicants are not interested in conducting the petition on merits despite the directions by the Hon'ble Apex Court. S.O. to 1.7.2016.

4. Subsequently, the applicants appear to have filed in the registry an affidavit dated 4.8.2016.

Thereafter, this application is listed today for appropriate orders.

Page 3 HC-NIC Page 3 of 10 Created On Mon Oct 02 03:37:44 IST 2017 C/SCA/15390/2011 ORDER However, today also, learned advocate for the applicants- petitioners is not present when the application is called out and taken up for hearing. It is incomprehensible that despite the order by Hon'ble Apex Court, learned advocate for the petitioners is not at all serious in conducting the petition on merits and on one ground or other, either adjournments are sought for in the petition or the hearing is not attended at the time when the matter is called out in seriatim i.e. in order as per the listing in the cause list.

The order dismissing the petition on the ground of non-prosecution will only cause difficulty for the original petitioners. Therefore, despite above mentioned facts, the court feels restrained in again dismissing the petition on ground of non- prosecution.

On the other hand, in view of the facts involved in the case, it is not possible to decide the matter in absence of learned advocate for the petitioners or petitioners themselves and by considering submissions from the side of employer. Therefore, hearing of the application is adjourned with instructions to the office that present application / petition may be listed for hearing only after the petitioners or learned advocate for the petitioners file an application stating that the hearing of the application and the petition will be attended without default and the matter will be conducted on merits.

The application and the petition shall be listed for hearing only after such application is filed by the parties."

Thereafter the Court constrained and compelled to dismiss the Misc. Civil Application No. 1564 of 2016 vide order dated 15.6.2017. The said order reads thus:-

1. When the application is called out and taken up for hearing, learned advocate for the applicants is not present.

2. It is pertinent to note that by this application the applicants have prayed that the order dated 25.4.2006 may be recalled and the proceedings of Special Civil Application No.15390 of 2011 may be restored.

3. The applicants and/or learned advocate do not have time to attend the hearing of the application and no one is interested for conducting the application seeking restoration of the main petition.

4. It would not be out of place to take note of the order dated 23.8.2016, wherein this Court observed, inter alia, that:

In respect of main petition, i.e. Special Civil Application No.15390 of 2011, this Court passed below quoted order on 25.4.2016: So far as this petition is concerned since 22.2.2016 the proceedings have been adjourned on account of one reason or another urged by the learned advocate for the petitioners.

In view of the request made by learned advocate for the petitioners on 21.3.2016 the hearing was adjourned to today. This petition is listed at serial No. 1 in today's cause list.

When the petition is called out and taken up for hearing learned advocate for the petitioners is not present. On his behalf any request for passover or adjournment is also not made.

No one has attended the hearing on behalf of the petitioners. Learned advocate for the petitioners has not filed leave note or sick note. The hearing is neglected by the petitioners. Despite this position the Court heard Mr. Bhatt, learned Page 4 HC-NIC Page 4 of 10 Created On Mon Oct 02 03:37:44 IST 2017 C/SCA/15390/2011 ORDER Senior Counsel for the respondent with the hope that by the time Mr. Bhatt, learned Senior Counsel completes his submissions, learned advocate for the petitioner would attend the hearing or someone else would attend the hearing or atleast some request may be made. The Court heard Mr. Bhatt, learned Senior Counsel for the respondent until 11.35 a.m. however no one from the side of petitioner appeared and attended the hearing.

Having regard to the order passed by Hon'ble Apex Court in Petition(s) for Special Leave to Appeal (C) No. 16511652 of 2015 this Court inquired from Mr. Bhatt, learned Senior Counsel why the respondent and the petitioners have not been paid wages at par with other workmen who were paid 100% backwages and why the petitioners have been granted 50% backwages.

In reply, Mr. Bhatt, learned Senior Counsel for the respondent submitted that the allegation by workmen is not true and the petitioners have not placed any material to support said allegation.

In view of the submission by learned Senior Counsel for the respondent, the Court would have decided the petition on merits.

However instead of dismissing the petition on merits the petition is dismissed on the ground of nonprosecution so that if the petitioners are interested in prosecuting the petition on merits they may avail opportunity within time permissible under Rules.

For the aforesaid reasons the petition stands dismissed for nonprosecution.

2. Thereafter, the petitioner preferred present application wherein it is prayed, inter alia, that: 4(A) Your Lordships may be pleased to allow this Misc. Civil Application and pass an order to restore the Sp.C.A.No.15390/2011 to its original file which was disposed of on 25.04.2016 and be further pleased to fix the matter for next hearing at an early date.

3. In view of the fact that the application lacks even basic details, below quoted order was passed on 20.6.2016: Right from the first date when the application is listed before this Court, adjournments are sought on one ground or another by learned advocate for the applicants. On previous occasion, the hearing of the application had to be adjourned because the restoration application lacked preliminary and basic averments. For the said reason, the application deserved to be rejected, however, at the request of learned advocate for the applicants, time was granted. Today adjournment is request for on the ground of personal difficulty and it is submitted that the amendment application could not be prepared on account of personal difficulty. It appears that the applicants are not interested in conducting the petition on merits despite the directions by the Hon'ble Apex Court.

S.O. to 1.7.2016.

4. Subsequently, the applicants appear to have filed in the registry an affidavit dated 4.8.2016.

Thereafter, this application is listed today for appropriate orders.

However, today also, learned advocate for the applicants petitioners is not present when the application is called out Page 5 HC-NIC Page 5 of 10 Created On Mon Oct 02 03:37:44 IST 2017 C/SCA/15390/2011 ORDER and taken up for hearing. It is incomprehensible that despite the order by Hon'ble Apex Court, learned advocate for the petitioners is not at all serious in conducting the petition on merits and on one ground or other, either adjournments are sought for in the petition or the hearing is not attended at the time when the matter is called out in seriatim i.e. in order as per the listing in the cause list.

The order dismissing the petition on the ground of non prosecution will only cause difficulty for the original petitioners. Therefore, despite above mentioned facts, the court feels restrained in again dismissing the petition on ground of nonprosecution.

The application and the petition shall be listed for hearing only after such application is filed by the parties.

5. It appears that in pursuance of the said order, the application came to be filed before the Registry with a request to list the application for hearing and appropriate order. Even after filing the said application, the applicant has not attended the hearing of the application.

6. Any request for passover or adjournment is also not made.

7. Under the circumstances, the Court is constrained to dismiss the application on ground of nonprosecution.

The applicant / petitioner thereafter moved another Misc. Civil Application No. 1675 of 2017 in Misc. Civil Application No. 1564 of 2016 and requested that proceedings of Misc. Civil Application No. 1564 of 2016 may be restored.

This Court vide order dated 17.7.2017 restored the Misc. Civil Application No. 1564 of 2016. The order dated 17.7.2017 in Misc. Civil Application No. 1675 of 2017 reads thus:-

Page 6 HC-NIC Page 6 of 10 Created On Mon Oct 02 03:37:44 IST 2017 C/SCA/15390/2011 ORDER

1. Heard learned counsel appearing for the contesting parties.

2. Having regard to the facts of the case and in view of the submissions made by learned counsel for the parties, Rule. Learned advocate for the opponents have waived service of Notice of Rule for the opponent. At the request of learned counsel appearing for both the sides the application is taken up for hearing and decision today.

3. In present application, the applicants have prayed that:

(7)(A) Your Lordship may be pleased to allow this Misc. Civil Application and pass an order to restore the M.C.A. No.1564 of 2016 along with Sp.C.A. No.15390 of 2011 to its original file which was disposed of on 15.06.2017 and be further pleased to fix the matter for next hearing at an early date.

4. Having regard to the submissions made by learned counsel for the applicants and having regard to the averments made in present application, since sufficient cause is shown and satisfactory explanation is tendered, the order dated 15.6.2017 passed in Misc. Civil Application No.1564 of 2016 is recalled.

5. Office is directed to restore the proceeding of Misc. Civil Application No.1564 of 2016 to its original file and to list the said application for hearing in due course.

With the said direction, present application, i.e. Misc. Civil Application No.1675 of 2017 is partly allowed. Rule is made absolute to the aforesaid extent."

Accordingly Misc. Civil Application No. 1564 of 2016 came to be restored. Subsequently, Misc. Civil Application No. 1564 of 2016 was listed for further hearing and order on 31.7.2017. On 31.7.2017 below quoted order came to be passed:-

1. Learned advocate for Opponent has served copy of reply affidavit. The reply affidavit is tendered on record.

2. Having regard to the details mentioned in reply affidavit, learned advocate for the applicant submitted that the learned advocate for applicant has filed Draft Amendment on 27.6.2016, which, according to his submission, contains explanation for his absence at the time of hearing on 25.4.2016. He requested that the said amendment may be allowed.

3. The learned advocate for applicant also submitted that so as to substantiate the statement in the draft amendment that on 25.4.2016 he could not attend the hearing because he had to attend the hearing of old recovery application before learned Labour Court, he will place on record relevant material to demonstrate that on 25.4.2016, the said matters were listed before learned Labour Court and he had attended the hearing before the learned Labour Court on 25.4.2016.

4. In view of the said request by learned advocate for applicant, following order is passed:

a. Draft amendment dated 27.6.2016 is granted and petitioner is permitted to amend the application in terms of said draft amendment. Amendment to be carried out on or before 3.8.2017. If the respondent wants to file reply in response to the amendment/ amended application. b. The applicant is also granted time to place on record material to demonstrate that on 25.4.2016 the recovery application were listed for hearing before learned Labour Court and that he attended the said hearing Page 7 HC-NIC Page 7 of 10 Created On Mon Oct 02 03:37:44 IST 2017 C/SCA/15390/2011 ORDER before learned Labour Court on the said date.

c. Mr. Bhatt, learned Senior Counsel for respondent submitted that he reserves his response until the material is placed on record.

5. At the request of learned advocate for petitioner to place material on record, hearing is deferred to 21.8.2017."

The said order was followed by order dated 21.8.2017 and 31.8.2017. The order dated 31.8.2017 reads thus:-

1. Heard learned advocate for the applicant.

2. Rule. Learned advocate for the respondent has waived service of rule and with consent of learned advocates, application is heard for final order today.

3. This application is taken out in connection with Special Civil Application no. 15390 of 2011.

4. It is found from record that despite the said position, hearing is not attended by original petitioners. Consequently, the Court was constrained to dismiss the petition on the ground of non-prosecution vide order dated 25.04.2016. Subsequently, the original petitioners have filed present application. The application came to be filed on or around 03.05.2016. It was placed for final hearing on 14.06.2016. On 14.06.2016, this court passed below quoted order:

1. Despite the fact that the court has recorded in detail, the circumstances which compelled the court to dismiss the petition on ground of non-

prosecution, the applicant has not taken care to even offer any explanation as to why the hearing was not attended on the date when the matter was scheduled and listed for hearing. Not a word is mentioned about the reason for the absence at the time of hearing. Any justification and sufficient cause to condone absence and to recall the order is not made out. At the time of hearing of this application, learned advocate for the applicant simply said that he was busy somewhere else and came to be court in second sitting. Except the said reason, any other explanation is not offered today at the time of hearing of this application.

2. Ordinarily, in this view of the matter, the court would dismiss the application. However, considering the fact that the burden of cost and expenses for filing fresh application and payment of court fee, etc., will fall on the petitioners the court has refrained from passing the order rejecting the application. Instead, time to amend the application is granted. S.O. to 20.06.2016.

2. The chronology of history and events till this date are recorded in the order dated 20.06.2016, 23.08.2016, 15.06.2017 and 31.07.2017.

3. In light of the said details, ordinarily the court would have passed order directing applicants / petitioners to pay appropriate cost.

4. However, having regard to the fact that the applicants are workmen, the court restrained itself and from passing any order or other remarks with regard to the profile of the proceeding till this date.

5. It is further necessary to record that on account of delay caused in conducting the hearing of the petition, any progress is not made so far as main petition is concerned.

6. With the hope that petitioners shall seriously and diligently prosecute the matter without causing further delay, following order is passed.

(a) It is clarified that the learned counsel for the respondent has also fairly submitted that if the request in the application is granted, respondent does not have any objection.

(b) Application is allowed in terms of Para-4(a).

(c) The order dated 25.04.2016 is recalled and office is directed to restore the petition on its original file and status.

With the aforesaid directions, the application is allowed in terms of Para-4(a). Rule is made absolute to the aforesaid Page 8 HC-NIC Page 8 of 10 Created On Mon Oct 02 03:37:44 IST 2017 C/SCA/15390/2011 ORDER extent."

With the said order dated 31.8.2017 the Misc. Civil Application No. 1564 of 2016 came to be allowed and main petition i.e. Special Civil Application No. 15390 of 2011 came to be restored to its original file.

In pursuance of the order dated 31.8.2017 main petition i.e. Special Civil Application No. 15390 of 2011 is listed at Serial No. 2 in today's cause list.

When the mater is called out and taken up for hearing learned advocate for the petitioner is not present.

It is informed that learned advocate for the petitioner has filed leave note.

The person who identified himself as Mr. R.N. Joshi i.e. petitioner is present in Court and seeks time on behalf of the learned advocate who has filed leave note.

Despite the fact that case is remanded by Hon'ble Apex Court for reconsideration and fresh decision, the petition is not being conducted on merits.

In view of the fact that the learned advocate for the petitioner is not present and on his behalf adjournment is requested for, proceedings are adjourned.

S.O. to 13.10.2017.

Page 9 HC-NIC Page 9 of 10 Created On Mon Oct 02 03:37:44 IST 2017 C/SCA/15390/2011 ORDER (K.M.THAKER, J.) Suresh* Page 10 HC-NIC Page 10 of 10 Created On Mon Oct 02 03:37:44 IST 2017

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