Gujarat High Court
Vishnubhai Keshabhai Prajapati vs Interklin Refactory And on 12 February, 2016
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/SCA/9231/2014 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9231 of 2014
TO
SPECIAL CIVIL APPLICATION NO. 9237 of 2014
================================================================
VISHNUBHAI KESHABHAI PRAJAPATI AND ORS. ....Petitioners Versus INTERKLIN REFACTORY AND CERAMICS PVT LTD. ...Respondent ================================================================ Appearance:
MR D J BHATT, ADVOCATE for the Petitioner Workmen MR K.M.PATEL, SR ADVOCATE with MR.VARUN K.PATEL, ADVOCATE for the Respondent Employer ================================================================ CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY Date : 12/02/2016 CAV ORDER
1. Challenge in this group of seven petitions is made by the respective seven workmen, to the separate but identical orders passed by the Labour Court, Kalol (North Gujarat) all dated 01.05.2014, on Miscellaneous Application (under Rule 26A of the Industrial Disputes (Gujarat) Rules, 1966) No.13 of 2009 and cognate applications, the details of which are noted here below. By the said orders, the earlier awards passed in Reference (LCK) No.79 of 1991 and cognate References, (the details of which are noted here below) are set aside by the Labour Court and the matters were fixed for hearing of the main References, on merits.Page 1 of 17
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2. For the convenience, the paper book of Special Civil Application No.9231 of 2014 is referred to, for the purpose of this order. But it is jointly submitted that, the point at issue in each petition, is the same. Details qua each petition, are as under.
2.1 Special Civil Application No.9231 of 2014 is filed by the workman viz.Vishnubhai Keshabhai Prajapati challenging the order passed by the Labour Court in Miscellaneous Application No.13 of 2009 in Reference (LCK) No.79 of 1991.
2.2 Special Civil Application No.9232 of 2014 is filed by the workman viz. Harikrushna Tikarabhai Chauhan challenging the order passed by the Labour Court in Miscellaneous Application No.12 of 2009 in Reference (LCK) No.81 of 1991.
2.3 Special Civil Application No.9233 of 2014 is filed by the workman viz.Babuji Bhikhaji Thakore challenging the order passed by the Labour Court in Miscellaneous Application No.18 of 2009 in Reference (LCK) No.591 of 1993.
2.4 Special Civil Application No.9234 of 2014 is filed by the workman viz. Shamjibhai Fuljibhai Patel challenging the order passed by the Labour Court in Miscellaneous Application No.16 of 2009 in Reference (LCK) No.72 of 1991.
2.5 Special Civil Application No.9235 of 2014 is filed by the workman viz. Bhagvansinh Udesinh Vaghela challenging the order passed by the Labour Court in Miscellaneous Application No.17 of 2009 in Reference (LCK) No.74 of 1991.
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2.6 Special Civil Application No.9236 of 2014 is filed by the workman viz. Mohanbhai Ramabhai Prajapati challenging the order passed by the Labour Court in Miscellaneous Application No.14 of 2009 in Reference (LCK) No.78 of 1991.
2.7 Special Civil Application No.9237 of 2014 is filed by the workman viz.Dasharathbhai Govindbhai Senma challenging the order passed by the Labour Court in Miscellaneous Application No.15 of 2009 in Reference (LCK) No.77 of 1991.
3.1 Mr.D.J.Bhatt, learned advocate for the petitioners - workmen has submitted that, notice was issued by the Labour Court on the application for condonation of delay in filing the Miscellaneous Application for setting aside the award, but no notice was issued to the workmen on the Miscellaneous Application itself and therefore the impugned orders need to be quashed and set aside.
3.2 Without prejudice to the above, learned advocate for the petitioners has further contended that, even on merits, the impugned orders need to be interfered with. Learned advocate has taken this Court through the material on record to contend that, the earlier awards were not ex-parte awards and no hearing afresh was required in the matter. It is submitted that on that additional count also, the impugned orders be quashed and set aside.
3.3 Mr.Bhatt, learned advocate for the petitioner has relied on the following decisions, in support of his submissions.
(i) AIR 2008 SC 2054 - Reena Sadh vs. Anjana Page 3 of 17 HC-NIC Page 3 of 17 Created On Sat Feb 13 03:41:47 IST 2016 C/SCA/9231/2014 CAV ORDER Enterprises
(ii) (1987) 2 SCC 344 - Kewal Ram vs. Ram Lubhai
(iii) (2007) 13 SCC 583 - Dadan Ram vs. State of Bihar
(iv) (2002) 5 SCC 377 - Sushil Kumar Sabharwal vs. Gurpreet Singh
(v) (1993) 2 SCC 185 - Salil Dutta vs. T.M. And M.C. Private Ltd.
3.4 It is submitted by learned advocate for the petitioners that, the impugned orders be quashed and set aside.
4.1 On the other hand, Mr.K.M.Patel, learned senior advocate for the respondent company has submitted that, the impugned orders are passed after due notice to the workmen and after hearing them, and therefore no interference on that count be made by this Court.
4.2 It is further submitted that even on merits, the Labour Court has not committed any error. Reference is also made to the earlier rounds of litigation including the orders passed by this Court recorded on Special Civil Application No.5599 of 2010 and 6116 of 2010, both dated 13.05.2010. It is submitted that the adjudication of the References on merits is required in view of the directions of this Court also, which the Labour Court has taken into consideration.
4.3 Learned senior advocate for the respondent has taken this Court through the orders passed by the Labour Court and this Court, from time to time, to contend that, the workmen are interested only in cost and idle wages and there is lack of bona fide on the part of the workmen. Learned senior advocate for Page 4 of 17 HC-NIC Page 4 of 17 Created On Sat Feb 13 03:41:47 IST 2016 C/SCA/9231/2014 CAV ORDER the respondent has taken this Court through the facts emerging from record in detail. It is submitted that, no interference be made in the impugned orders. It is submitted that these petitions be dismissed.
5. Having heard learned advocates for the respective parties and having gone through the material on record, this Court finds that, there are two points for consideration before this Court. Firstly, whether the impugned orders passed by the Labour Court, are without any notice to the concerned workman, as contended by learned advocate for the petitioners, and secondly, whether the impugned orders otherwise call for any interference, on merits.
6. So far the first point, as to whether the impugned orders passed by the Labour Court, are without any notice to the concerned workman, is concerned, this Court finds as under.
6.1 Before passing the impugned order dated 01.05.2014, the Labour Court had, vide order dated 15.01.2011, recorded on Miscellaneous Application No.13 of 2009 itself, condoned the delay in filing the Miscellaneous Application under Rule 26A, by imposing cost of Rs.7,000/- in favour of each workman. The said order is on record as Annexure - N at Page : 69 to 76. On that very order, in the operative part itself, in Para : 2, it was indicated that, the hearing of the main Miscellaneous Application would be on 10.02.2011. As a matter of fact, the said hearing has taken place, may be on subsequent dates. In this factual background, the argument of learned advocate for the petitioners that, the workmen were not put to notice qua this application, is not only not well founded, but is contrary to Page 5 of 17 HC-NIC Page 5 of 17 Created On Sat Feb 13 03:41:47 IST 2016 C/SCA/9231/2014 CAV ORDER record.
6.2 There is an additional factor against the petitioners. In the impugned order (Para : 3), the Labour Court has noted that, the cost of Rs.7,000/- qua each workman was deposited by the employer in the Labour Court, subsequently, application was given on behalf of each workman for withdrawal of the said amount, which was allowed also and the amount is paid to them. The cost of Rs.7,000/- is provided in Para : 1 in the operative part of the order dated 15.01.2011, the said amount is received by the workmen and still he contends that, he is not aware of Para : 2 of that very order wherein the next date of hearing of the main application also was fixed. This contention is therefore rejected.
6.3 Further, in the impugned order dated 01.05.2014, the appearance of the representative of the workmen is also noted by the Labour Court.
6.4 Further, in Para : 5 of the impugned order, the Labour Court has noted that, the parties are heard at length.
6.5 It is noted that, learned advocate for the petitioners has relied on number of decisions as noted above in support of this argument. In this regard, it needs to be noted that, in the facts noted above, none of the judgments will take the case of the workmen any further.
6.6 In the above factual background, the bone contention of the workmen that there was no notice to them, qua the application on which the impugned order is passed, is falsified Page 6 of 17 HC-NIC Page 6 of 17 Created On Sat Feb 13 03:41:47 IST 2016 C/SCA/9231/2014 CAV ORDER by the record and the conduct of the workmen themselves and therefore this contention is rejected.
7. Having held as above, the next point for consideration is, whether the impugned orders, otherwise, need to be interfered with by this Court, on merits. In this regard, the following orders passed by this Court, in the earlier rounds of litigation, need to be kept in view.
7.1 On Special Civil Application No.5599 and 5600 of 2010, this Court (Coram : Hon'ble Mr. Justice H.K. Rathod) had passed the following order, on 13.05.2010, between these very parties.
"Heard learned advocates appearing on behalf of respective parties.
In these petitions, petitioners have challenged the award passed by Labour Court, Kalol dated 15th December 2009 in Recovery Certificate Application No.28 of 2006.
Learned advocate Mr. Pratik Thakkar appearing on behalf of petitioner submitted that Reference No.74 of 1991 filed by respondent Bhagwansing Udesing Vaghela which was referred for adjudication on 3rd April 1991 had decided by Labour Court on 3rd April 2001 granting relief of reinstatement with full back wages and with continuity of service. He submitted that before Labour Court, learned Page 7 of 17 HC-NIC Page 7 of 17 Created On Sat Feb 13 03:41:47 IST 2016 C/SCA/9231/2014 CAV ORDER advocate Mr. M.J. Desai was engaged by present petitioner and written statement Ex.5 was filed. Thereafter, workman was cross- examined by advocate of petitioner vide Ex.6, but, advocate of petitioner has not examined any witness on behalf of petitioner.
Therefore, right of oral evidence of
petitioner has been closed. Therefore, he
submitted that because of oral evidence not led by advocate, matter has been decided 3rd April 2001 in absence of petitioner and his advocate and granted relief by Labour Court, Kalol in favour of workman. Thereafter, petitioner has preferred Misc. Application No.17 of 2009 for setting aside ex-parte award passed by Labour Court. Along with application for setting aside ex-parte award in Reference No.74 of 1991, there was a delay in filing such application, therefore, delay condone application was also filed by petitioner. Against which, reply was filed by respondent vide Ex.8, but, advocate engaged by petitioner remained absent before Labour Court, Kalol in Misc. Application No.17 of 2009. Ultimately, in absence of petitioner and petitioner's advocate, delay condone application has been dismissed in default by order dated 24th September 2009. Therefore, present petition is filed by petitioner. He submitted that Recovery Application No.185 of 2002 filed by respondent workman which was Page 8 of 17 HC-NIC Page 8 of 17 Created On Sat Feb 13 03:41:47 IST 2016 C/SCA/9231/2014 CAV ORDER also decided in absence of petitioner by order dated 14th October 2004. He submitted that recovery proceedings has been initiated against present petitioner by respondent, therefore, respondent No.2 has acted on that and in result thereto, post dated cheque has been issued and handed over in favour of respondent No.2.
Learned advocate Mr. Munshaw appearing on behalf of respondent No.2 submitted before this Court that respondent No.2 has received post dated cheque from petitioner for Rs.12,49,438/- and amount of Rs.7,38,557/- has been deposited by respondent No.2 before Labour Court, Kalol. Out of that, payment is made by Labour Court, Kalol for Rs.83,566/- in favour of respondent workman Bhagwansinh Udesinh Vaghela.
In light of this background, it is directed to respondent No.2 that as and when post dated cheque is realised by respondent No.2, then, total amount is required to be deposited by respondent No.2 before Labour Court, Kalol.
The Labour Court, Kalol is directed not to disburse any amount to any workman from deposited amount Rs.7,38,557/- and now, it will be deposited by respondent No.2 after realising post dated cheque of Rs.12,49,438/-
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unless and until the application which will be made by petitioner against Misc. Application No.17 of 2009 Ex.10 which has been dismissed in default by order dated 24th September 2009, is decided.
The petitioner is having alternative, effective and statutory remedy available under Rule 26A of the Industrial Disputes (Gujarat) Rules, 1966 to file application for setting aside ex-parte award, which has been passed in absence of petitioner, before Labour Court, Kalol. Against the delay condone application also, which has been dismissed in default as referred above, petitioner is entitled to file application under Rule 26A of the Industrial Disputes (Gujarat) Rules, 1966. the Labour Court, Kalol is having powers under Rule 26B of the Industrial Disputes (Gujarat) Rules, 1966 to grant interim relief during pendency of such application in favour of petitioner after hearing the respective parties. Therefore, only on that ground, present petitions are not entertained by this Court.
Accordingly, let petitioner may approach the Labour Court, Kalol by filing application under Rule 26A of the Industrial Disputes (Gujarat) Rules, 1966 along with interim stay application and it is directed to Labour Court, Kalol to decide such application which Page 10 of 17 HC-NIC Page 10 of 17 Created On Sat Feb 13 03:41:47 IST 2016 C/SCA/9231/2014 CAV ORDER will be filed by petitioner, after hearing the respective parties, on merits, in accordance with law.
In Special Civil Application No.5600 of 2001, learned advocate Mr. D.J. Bhatt is appearing on behalf of workman Bhagwansing Udesing Vaghela, who is the same respondent in Special Civil Application No.5599 of 2010.
In SCA 5600 of 2010, petitioner has challenged award passed by Labour Court in Reference No.74 of 1991 dated 3rd April 2001 and order passed in Misc. Application No.17 of 2009 dated 25th September 2009. The Recovery Certificate Application No.28 of 2006 in Reference No.74 of 1991 is filed by respondent workman which has been decided in absence of petitioner while issuing direction for recovery certificate of Rs.95,841=20 ps., by order dated 15th December 2009. This order is also passed against petitioner in absence of petitioner by Labour Court, Kalol.
Against aforesaid Recovery Certificate dated 15th December 2009, Labour Court, Kalol has paid the amount of Rs.83,566/- to respondent
- Bhagwansing Udesing Vaghela. The aforesaid order is passed in Recovery Certificate Application in absence of petitioner, therefore, petitioner can approach Labour Court, Kalol by filing application to set Page 11 of 17 HC-NIC Page 11 of 17 Created On Sat Feb 13 03:41:47 IST 2016 C/SCA/9231/2014 CAV ORDER aside ex-parte order in Recovery Certificate Application No.28 of 2006 under Rule 26A of the Industrial Disputes (Gujarat) Rules, 1966 along with stay application under Section 26B of the Industrial Disputes (Gujarat) Rules, 1966.
In view of above observations and directions, both petitions filed by petitioner in respect to one respondent workman are disposed of only on the ground that petitioner is having alternative, effective, statutory remedy under Rule 26A/26B of the Industrial Disputes (Gujarat) Rules, 1966. Accordingly, both petitions are disposed of by this Court without expressing any opinion on merits. Direct service is permitted."
7.2 On Special Civil Application No.6116 to 6126 of 2010, this Court (Coram : Hon'ble Mr. Justice H.K. Rathod) had passed the following order, on 13.05.2010 itself, between these very parties.
"Heard learned advocate Mr. Pratik P. Thakkar appearing on behalf of petitioner employer in this group of petitions.
In some of cases, ex-parte order is passed in recovery application while issuing recovery certificate against petitioner by Labour Court, Kalol and in some of the cases, ex-parte award was also passed against Page 12 of 17 HC-NIC Page 12 of 17 Created On Sat Feb 13 03:41:47 IST 2016 C/SCA/9231/2014 CAV ORDER present petitioner, but, against which, Misc. Application was preferred by petitioner along with delay condone application, but, such delay condone application has been dismissed in default by Labour Court, Kalol.
This group of orders are under challenge and accordingly, prayer is made in each petition by petitioner. Therefore, according to my opinion, in respect to each petition, against the prayer made by petitioner, petitioner is having alternative, effective and statutory remedy available under Rule 26A/26B of the Industrial Disputes (Gujarat) Rules, 1966 to file application for setting aside ex-parte award/order and order of dismissing the matter in default. If there is a delay, then, petitioner has to file delay condone application before Labour Court. The Labour Court has jurisdiction and power to grant interim stay against such ex-parte award/order and also, in case, where application filed by petitioner for condoning delay is dismissed in default, therefore, in all the group of matters, prayer is made by petitioner in present petitions. For that, let petitioner may approach Labour Court, Kalol in each case by filing appropriate Misc. Application along with delay condone application, if required, and also by separate application for interim stay under Rule 26A.26B of the Industrial Disputes Page 13 of 17 HC-NIC Page 13 of 17 Created On Sat Feb 13 03:41:47 IST 2016 C/SCA/9231/2014 CAV ORDER (Gujarat) Rules, 1966.
As and when Labour Court, Kalol received such applications from petitioner under Rule 26A/26B and also received delay condone applications, then, it is directed to Labour Court, Kalol to decide it after giving reasonable opportunity of hearing to both respective parties and then to pass appropriate reasoned order in accordance with law within a period of two months from the date of receiving such application from petitioner in respect of each petition.
The amount which has been deposited by respondent No.2 Revenue Authority and Revenue Authority respondent No.2 received post dated cheque which will be realised by Revenue Authority, then, such amount will be deposited by respondent No.2 before Labour Court. So, both kind of amount which are available to Labour Court have been deposited by petitioner.
Therefore, according to my opinion, till the application which will be filed by petitioner are not finally decided by Labour Court, Kalol, no payment is to be disbursed in favour of any respondent workman of present group of petitions, meaning thereby, so long, applications which will be filed by petitioner under Rule 26A/26B along with Page 14 of 17 HC-NIC Page 14 of 17 Created On Sat Feb 13 03:41:47 IST 2016 C/SCA/9231/2014 CAV ORDER delay condone application are not finally decided by Labour Court, Kalol, no payment is to be disbursed by Labour Court, Kalol in favour of any of respondent of this group of petitions. Let bi-parte order is to be passed by Labour Court, Kalol on merits after giving reasonable opportunity of hearing to respective parties.
In view of above observations and directions, present petitions are disposed of without expressing any opinion on merits.
The directions which have been given by this Court specifically in Special Civil Application No.5599 of 2001 and 5600 of 2010 shall applicable in this group of petitions also and Labour Court, Kalol is directed to comply with aforesaid directions in present group of petitions. So, the purpose is that in absence of decision on merits, no payment is to be disbursed to any of respondent unless the matters are decided finally on merits. Thereafter, it is open for Labour Court, Kalol to disburse the amount on the basis of merits, otherwise not.
Direct service is permitted."
7.3 The above directions of this Court have attained finality. The Labour Court has also taken the above orders into consideration. Any interference by this Court, in the impugned Page 15 of 17 HC-NIC Page 15 of 17 Created On Sat Feb 13 03:41:47 IST 2016 C/SCA/9231/2014 CAV ORDER order, would obstruct the adjudication of the References on merits and would also obstruct the disbursement of the amount which is already lying with the Labour Court. Any interference by this Court would also be inconsistent with the earlier direction of this Court and would also be against the interest of the workmen.
7.4 Considering the totality, no interference is called for by this Court, even on merits.
8. Independent of the factors and findings noted in Para : 7 above, this Court finds that the Labour Court has even otherwise not committed any error, which may call for any interference by this Court. For this purpose, this Court has taken into consideration the reasons recorded by the Labour Court in the impugned orders and no infirmity is found therein. Considering the totality, this Court finds that, these petitions need to be dismissed.
9. For the reasons recorded above, the following order is passed.
9.1 These petitions are dismissed.
9.2 The impugned orders passed by the Labour Court, the details of which are noted in Paras : 1 and 2 above, are confirmed.
9.3 Rule, in each petition, is discharged. Interim relief granted earlier is vacated. No order as to costs.
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(PARESH UPADHYAY, J.)
10. After the pronouncement of this order, learned advocate for the petitioners has prayed that, the stay, which was operating in favour of the petitioners, be extended for some time. This request is opposed by the other side. Considering the totality, the request is rejected.
(PARESH UPADHYAY, J.) Amit/1 Page 17 of 17 HC-NIC Page 17 of 17 Created On Sat Feb 13 03:41:47 IST 2016