Gujarat High Court
Veer Textile vs Babubhai Sahidbhai on 17 September, 2014
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/SCA/3547/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3547 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE PARESH UPADHYAY
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1 Whether Reporters of Local Papers may be allowed to see Yes
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
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 ? No
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VEER TEXTILE ....Petitioner
Versus
BABUBHAI SAHIDBHAI
AND ORS. ...Respondents
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Appearance:
MR PRABHAKAR UPADYAY, ADVOCATE for the Petitioner
Respondent No.1 [ Workman / Union ] - is served
Respondent No.2 - is served
MR PARITOSH CALLA, ADVOCATE for the Respondent No. 3
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CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY
Date : 17/09/2014
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C/SCA/3547/2014 JUDGMENT
ORAL JUDGMENT
1. Challenge in this petition is made to the order passed by the Labour Court, Ahmedabad dated 22.01.2014, below Exh.15
- the presentation of the Vakalatnama on behalf of the petitioner, in Reference T. No.2644 of 1994, whereby the Labour Court has rejected the said Vakalatnama under Section 36(4) of the Industrial Disputes Act, 1947, in view of the objection raised on behalf of the respondent - workman in that regard.
2. Heard Mr.Prabhakar Upadhyay, learned advocate for the petitioner.
3. The contesting respondent Workman / Union are served, but they have chosen not to appear and contest this petition. Notice was issued by this Court on 10.03.2014, which was served to the Union on 14.03.2014. Since the Union or workman had not appeared, fresh notice was issued by this Court on 28.03.2014 on the new address of the workman. The said notice was served on the workman on 09.04.2014, then also, neither of them appeared. Under these circumstances, the matter was adjourned time and again and thereafter, on 31.07.2014, Rule was issued by this Court, which is also served on 05.08.2014, then also no appearance is made and under these circumstances, this order is recorded after taking into consideration the say of the learned advocate for the petitioner and material on record.
4. Having heard learned advocate for the petitioner and having taken into consideration the material on record, the picture which has emerged before this Court is as under.
Page 2 of 6C/SCA/3547/2014 JUDGMENT 4.1 The petitioner unit was a proprietary firm, which was closed down in August, 1993. The proprietor is a lady, who is aged about 74 years of age, at present. She is operated for her orthopedic problem, and certificate to that effect is also placed on record.
4.2 The respondent claimed to be a workman of the petitioner firm and he had moved the Labour Court by Reference (LCA) No.2644 of 1994 agitating that, he was wrongly terminated from service.
4.3 The Reference went ex parte and award was passed on 19.12.2008 (Page-41). The Labour Court was also aware of the fact that, Unit had already closed down and therefore no reinstatement was ordered, however, direction was given that the wages shall be paid to the workmen till the Unit was closed. The Unit was closed on 01.08.1993 and necessary procedure in that regard was followed with the State Authorities on 16.08.1993.
4.4 After the award was passed on 19.12.2008, the petitioner filed an application under Rule 26A of the Industrial Disputes (Gujarat) Rules, being Miscellaneous Application No.177 of 2011, for setting aside the said ex-parte award. The said application was contested on behalf of the workman by the Union. After hearing the advocate for the petitioner and the representative of the Union, the said application was allowed by the Labour Court vide order dated 04.04.2013 by awarding cost in favour of the workman. The main Reference thus stood restored.
4.5 In view of above, the main Reference was to be taken up Page 3 of 6 C/SCA/3547/2014 JUDGMENT for hearing before the Labour Court, and at that stage, Vakalatnama was presented on behalf of petitioner Unit in place of an Advocate who was already appearing at that time for the petitioner Unit, and at that time objection was recorded by the representative of the workmen under Section 36(4) of the Industrial Disputes Act, 1947 and therefore, the impugned order came to be passed by the Labour Court rejecting the said Vakalatnama.
4.6 The effect of the above is that, the petitioner proprietor lady, aged about 74 years, who is operated for her orthopedic problem, and who is otherwise also ill, has to remain present before the Labour Court, on each adjournment, if she wants to defend her case before the Labour Court. It is stated on her behalf that, she is neither member of any association nor has employee or officer who can represent her case.
4.7 It is under these circumstances, that the representative of the Union has mandated the presence of this lady, before the Labour Court, under Section 36(4) of the Industrial Disputes Act, 1947, with which this Court is concerned in this petition.
5. The scope and ambit of Section 36(4) of the Industrial Disputes Act, 1947 is already examined by this Court in the case of Schneider Electric India Pvt. Ltd. Vs. Kailashben R. Valand reported in 2014(2) GLR 1264. Further, the facts of the present case are more glaring. This Court finds that, the impugned order passed by the Labour Court has resulted into a situation, where the fundamental right of the present petitioner stands violated since she is rendered remediless to put her case before the Labour Court. At the same time, for the Page 4 of 6 C/SCA/3547/2014 JUDGMENT respondent Workman / Union, except an arm-twisting tactic, there is no further benefit derived by him. Be it noted that, an Advocate was already appearing on behalf of the petitioner and there was no objection qua that, however, the representative of the Union changed in the Labour Court and at that stage the objection has come. The bona fide of the workman vis-a-vis the lack of bona fide of his representative is one of the relevant factors, which is already examined by this Court in the case of Schneider Electric India Pvt. Ltd.(supra), more particularly in para:7.1 to 7.5 of the said judgment, and the same applies with full force in the facts of this case, as well. Before this Court a situation has arisen, wherein the compliance of a statutory provision has resulted in violation of fundamental right of a citizen, and under these circumstances, appropriate correcting order needs to be passed by this Court, by setting aside the impugned order passed by the Labour Court.
6. In the facts and circumstances and for the reasons recorded above, the following order is passed.
6.1 This petition is allowed.
6.2 The impugned order passed by the Labour Court is quashed and set aside.
6.3 The petitioner is held to be entitled to put her case before the Labour Court through an Advocate of her choice. The Labour Court, Ahmedabad is directed to accept the Vakalatnama presented on behalf of the petitioner on the record of the Reference.
6.4 Rule made absolute. No order as to costs.
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(PARESH UPADHYAY, J.)
Amit
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