Gujarat High Court
Gujarat Women Economic Development ... vs Dineshkumar Jashbhai Patel & on 23 October, 2015
Bench: Jayant Patel, N.V.Anjaria
C/LPA/1246/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1246 of 2015
In SPECIAL CIVIL APPLICATION NO. 10973 of 2014
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GUJARAT WOMEN ECONOMIC DEVELOPMENT CORPORATION
LTD....Appellant(s)
Versus
DINESHKUMAR JASHBHAI PATEL & 1....Respondent(s)
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Appearance:
MR PINAKIN M RAVAL, ADVOCATE for the Appellant(s) No. 1
MR AMRESH N PATEL, CAVEATOR for the Respondent(s) No. 1
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE MR.
JAYANT PATEL
and
HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 23/10/2015
ORAL ORDER
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JAYANT PATEL)
1. The present appeal is directed against the order dated 03.08.2015 passed by the learned Single Judge of this Court in Special Civil Application No.10973/14, whereby the learned Single Judge, for the reasons recorded in the order, has not interfered with the award passed by the Labour Court and also the application for setting aside the ex parte award.
2. We have heard Mr. Raval, learned counsel appearing for the appellant.
3. The contention raised on behalf of the appellant was that as per the deposition of the workman Page 1 of 5 HC-NIC Page 1 of 5 Created On Wed Oct 28 00:31:55 IST 2015 C/LPA/1246/2015 ORDER himself, he was employee of the contractor which was a trust and therefore, he could not be said to be employee of appellant. The Labour Court did not consider the said aspects properly and was guided by the fact that the appellant did not properly defend the proceedings before the Labour Court and proceeded ex parte against the appellant. Application for setting aside of the ex parte award under Rule 26A of the Industrial Disputes (Gujarat) Rules, 1966 (hereinafter referred to as the "Rules") was made. The same is also not properly considered by the Labour Court. The learned Single Judge was guided by the record of the Labour Court only and did not consider the aspects of evidence of the workman himself. As per the learned advocate for the appellant, the petition was under Article 226 of the Constitution, but the learned Single Judge considered it as if under Article 227 of the Constitution. He submitted that if the workman was employee of the contractor, the liability could not be fastened upon the appellant and hence, this Court may consider in the appeal.
4. As such, the learned Single Judge has narrated the circumstances in the impugned order from para 18 onwards, which inter alia provide that the appellant has failed to prove the case that the workman was an employee of the contractor. The learned Single Judge in para 20 of the impugned order has also recorded that it was a petition Page 2 of 5 HC-NIC Page 2 of 5 Created On Wed Oct 28 00:31:55 IST 2015 C/LPA/1246/2015 ORDER under Article 227 of the Constitution and though articulately it is mentioned as under Article 226 of the Constitution. In our view, if the petition is considered as under Article 227 of the Constitution and the learned Single Judge has exercised the power under Article 227 of the Constitution, the Letters Patent Appeal may not be maintained.
5. Apart from the above, even if it is considered for the sake of examination that the petition was under Article 226 of the Constitution, then also we find that the following circumstances did exist
(a) In the dispute raised, the workman claimed that he was appointed by the appellant Corporation and for the purpose of show, trust documents were prepared.
(b) The dispute was referred for adjudication.
The workman led the evidence including for showing that the appointment of contractor was sham and bogus otherwise, he was directly working under the appellant Corporation. His salary was also being paid by the Corporation.
(c) The appellant who was party before the Labour Court, after filing written statement, submitted affidavit in support of the written statement, but for a period of Page 3 of 5 HC-NIC Page 3 of 5 Created On Wed Oct 28 00:31:55 IST 2015 C/LPA/1246/2015 ORDER about four years, no witness on behalf of the respondent was made available for cross examination.
(d) The Labour Court had no option but to proceed further and accept the contention raised and the claim made by the workman.
1. The attempt to rely upon the contract agreement cannot be countenanced because no such evidence was led by the appellant before the Labour Court. Further, even if such document was produced, unless the witness is permitted to be cross examined by giving opportunity to the workman to show that the so called appointment of contractor was sham and bogus, the defence of the appellant before the Labour Court could not be accepted.
2. On the aspect of not defending the proceedings before the Labour Court in the application for restoration under Rule 26A of the Rules, no details whatsoever are mentioned by name and datewise for showing that the person concerned who was looking after the work of litigation was transferred and therefore, the matter proceeded ex parte. The statements made in the application for restoration are as vague as anything. Such cannot be leniently viewed for consuming period of four years, that too in a case where the appellant is a company being fully aided with the help of lawyers and other persons who may have expertise in the field.
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3. If the aforesaid aspects are considered read with the reasons recorded by the learned Single Judge, we do not find that the impugned order of the learned Single Judge would be vulnerable even if the main petition was treated under Article 226 of the Constitution.
4. In view of the above, we do not find that any case is made out for interference. Hence, the appeal is meritless and therefore, dismissed.
(JAYANT PATEL, ACJ.) (N.V.ANJARIA, J.) bjoy Page 5 of 5 HC-NIC Page 5 of 5 Created On Wed Oct 28 00:31:55 IST 2015