Gujarat High Court
The Administrato Of Shri Bahucharaji ... vs Chhaganji U Thakore & on 27 February, 2013
Author: Ravi R.Tripathi
Bench: Ravi R.Tripathi
THE ADMINISTRATO OF SHRI BAHUCHARAJI MATAJI TEMPLE TRUST....Applicant(s)V/SCHHAGANJI U THAKORE C/CA/13076/2012 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 13076 of 2012 In MISC.CIVIL APPLICATION (STAMP NUMBER) NO. 2920 of 2012 In LETTERS PATENT APPEAL NO. 1525 of 2004 In SPECIAL CIVIL APPLICATION NO. 3667 of 2004 ================================================================ THE ADMINISTRATO OF SHRI BAHUCHARAJI MATAJI TEMPLE TRUST....Applicant(s) Versus CHHAGANJI U THAKORE & 17....Respondent(s) ================================================================ Appearance: MR. S.I. NANAVATI, SENIOR ADVOCATE WITH MRS VD NANAVATI, ADVOCATE for the Applicant(s) No. 1 Mr DM DEVNANI, AGP for the Respondent(s) No. 18 MR PH PATHAK, ADVOCATE for the Respondent(s) No. 1 MR SAURABH J MEHTA, ADVOCATE for the Respondent(s)No.2-16 ================================================================ CORAM: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI and HONOURABLE MR.JUSTICE R.D.KOTHARI Date : 27/02/2013 ORAL ORDER
(PER : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI)
1. The applicant- the Administrator of Shri Bahucharaji Mataji Temple Trust is before this Court praying that the delay of 2433 days caused in filing present Review Application be condoned.
2. Mr. S.I. Nanavati, learned senior advocate for the applicant submitted that it is in peculiar facts of the case that Misc. Civil Application (Stamp) No.2920 of 2012 was required to be filed. He submitted that earlier Special Civil Application No.3931 of 2004 and Special Civil Application No.3667 of 2004 were filed before this Court challenging the order of retrenchment by the petitioners. The Special Civil Applications were heard and disposed of by learned Single Judge of this Court (coram: Miss R.M. Doshit, J as she was then) by order dated 21/07/2004. A copy of which is produced at Annexure-'D'. Learned senior advocate submitted that the learned Single Judge was pleased to observe in paragraph-6 as under:-
6.....It is evident that the management of the Temple was taken over by the State Government and was entrusted to the Trust. One of the members of the Managing Committee is the Officer of the State. State Government has also framed certain rules requiring the Trust to pay wages to the employees as directed. However, this alone would not make the Trust a State within the meaning of Article 12 of the Constitution of India; nor the Trust performs governmental functions of the State. The Trust cannot be said to be a State within the meaning of Article 12 of the Constitution of India. The retrenchment has been effected after approval of the State Government in order of seniority. Each of the petitioners has been paid retrenchment compensation. There is nothing on record to indicate that the petitioners' service has been terminated with a view to engaging another set of employees..... (emphasis supplied) Learned senior advocate submitted that the learned Judge was pleased to record the submissions made on behalf of the Temple Trust in Paragraph-7. The same is reproduced as under:-
7.....Mr. Nanavati has further submitted that though the order of retrenchment was made on 23rd March, 2004; the said order was served upon the petitioners on 23rd March, 2004; retrenchment compensation was paid to each petitioner; the petitioners have filed Civil Application No.2063 of 2004 on 25th March, 2004 without disclosing the fact that the order of retrenchment was served upon the petitioners and that the retrenchment compensation was also paid to them...... (emphasis supplied) The learned Judge then passed the following order:-
.....In above view of the matter, neither the Trust can be said to be a State within the meaning of Article 12 of the Constitution of India, nor the order of retrenchment can be said to be contrary to any law or to the conditions of service of the petitioners. Hence the petitions are dismissed. Notice in each petition is discharged.... (emphasis supplied)
3. The matter was taken in appeal by the petitioners being Letters Patent Appeal No.1524 of 2004 in Special Civil Application No.3941 of 2004 with Letters Patent Appeal No.1525 of 2004 in Special Civil Application No.3667 of 2004 with Civil Application nos.2063 And 6225 of 2004. The appeals were heard at length and at the end of the hearing, the appeals came to be disposed of on a statement made by the learned advocate appearing for the Temple Trust, which is recorded in Paragraph-11, which is reproduced as under:-
11.....On the other hand, learned advocate Shri D.G. Shukla appearing for respondent No.2- Trust has submitted that the impugned judgment is just, legal and proper. He has also submitted that if the petitioners desire to challenge the orders of retrenchment by having recourse to the provisions of the I.D. Act, the Trust would not raise any objection about the maintainability of their cases before the Labour Court..... (emphasis supplied)
4. Learned senior advocate appearing for the Temple Trust submitted that it is, thus, the later part of the statement that - the Trust would not raise any objection about the maintainability of their cases before the Labour Court is made the basis to argue before the learned Single Judge that, the Trust cannot challenge the findings recorded by the learned Judge of the Labour Court that the Temple Trust is an industry .
5. Learned senior advocate for the Temple Trust submitted that in the course of hearing of Special Civil Application No.11084 of 2012, it was argued by the learned advocate appearing for the workmen that the issue stand concluded in light of the statement made by the learned advocate appearing for the Temple Trust before the Devision Bench, when the learned advocate for Temple trust agreed, to subject 'the temple trust to the jurisdiction of Labour Court the issue stood concluded. The learned senior advocate submitted that it is a settled position of law that the statement made either under a misconception of law or under any mistaken belief of law or even deliberately cannot confer the jurisdiction upon any forum. Learned senior advocate submitted that the aforesaid proposition of law is required to be tested. If unit comes forward and dispute its status being an industry, the 'question' will be examined by the Labour Court and a finding will have to be recorded after appreciation of the evidence led to the effect that the unit concerned is an industry or not? Similarly, even if it is assumed, for the sake of argument, that the learned advocate appearing for the Trust in Letters Patent Appeal Nos.1524 of 2004 and Letters Patent Appeal No.1525 of 2004 had made a statement that, the Trust will not raise any objection about the maintainability of their cases before the Labour Court , will not ipso-facto conclude the point and the finding recorded by the Labour Court on the question of temple trust is an industry , has to be examined by this Court in accordance with law.
6. Learned senior advocate appearing for the temple trust submitted that it can be argued before this Court that the temple trust had agreed to subject itself to the jurisdiction of the Labour Court, but that, itself will not debar the Temple Trust from contesting the finding of the Labour Court on the point that of temple trust being an industry.
7. Learned senior advocate for the temple trust submitted that this finding is challenged in the petition by the Temple Trust and the learned advocate appearing for the workmen submitted that the same cannot be done in view of the statement made by the learned advocate for the Temple Trust in Letters Patent Appeals before the Division bench, the learned Single Judge was of the opinion that it will be in fitness of things, if the statement made by the learned advocate appearing for the temple trust before the Division Bench is clarified by the Devision Bench. It is, in these circumstances, the Misc. Civil Application (Stamp) No.2920 of 2012 is required to be filed at this stage and thus, there is delay of 2433 days.
8. Rule.
Mr. Pathak, learned advocate for the respondent waives service of rule.
9. The learned advocate for the parties submitted that there is nothing more to be submitted in the matter. The facts are already set out and the question of condonation of delay is required to be decided in light of the aforesaid discussion. On careful consideration, the matter requires to be allowed. The same is allowed. Delay of 2433 days caused in filing Review Application is condoned.
Rule is made absolute.
(RAVI R.TRIPATHI, J.) (R.D.KOTHARI, J.) aruna To be referred to Reporter.
(RAVI R.TRIPATHI, J.) Page 7 of 7