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/MCA/452/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD MISC.CIVIL APPLICATION (FOR RESTORATION) NO. 452 of 2013 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....Opponent(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 Opponent(s) No. 18 MR PH PATHAK, ADVOCATE for the Opponent(s) No. 1 ================================================================ 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 present application is filed praying that:-
11(B) Your Lordships may be pleased to review/recall the order dated 03.02.2006 (Annexure I hereto) passed in Letters Patent Appeal No.1524 of 2004 with Letters Patent Appeal No.1525 of 2004 and thereafter, modify/clarify the order qua the statement made and observed by this Honourable Court .
2. Learned senior advocate appearing for the temple trust submitted that the statement made before the Division Bench in Letters Patent Appeal No.1524 of 2004 and Letters Patent Appeal No.1525 of 2004 taken to its best should be construed to have agreed to go before the Labour Court and get tested the legality and validity of the retrenchment order only. The learned senior advocate submitted that this could be appreciated from the contents of the Paragraph-5 of the order of the learned Single Judge in Special Civil Application No.3931 of 2004 with Special Civil Application No.3667 of 2004 dated 21/07/2004, which is reproduced as under:-
5.....The petitions are contested by the Trust. It is denied that the Trust is a State within the meaning of Article 12 of the Constitution of India. It is stated that no financial assistance is extended by the State Government to the Trust. Mr. Nanavati has submitted that in the subject matter of the present petition the petitioners being apprehensive of their service had earlier preferred Special Civil Application No.1288 of 2004 which the petitioners withdrew, reserving the right of petitioners to challenge the apprehended action at appropriate stage before the appropriate forum. Mr. Nanavati has submitted that what was probably intended was that in the event of retrenchment/ termination of service the petitioners should avail of the remedy available before the court/ tribunal other than the petition under Article 226 of the Constitution of India. However, the said fact has been suppressed and a misleading statement is made in paragraph no.3.4 of the petition. It is stated that the petitioners withdrew the said petition reserving their right to challenge the apprehended action of the respondents . He has submitted that the words before the appropriate forum have been deliberately not referred to in the said paragraph. He has further submitted that in view of the loss incurred by the Trust, the Trust has decided to curtail its activities and, therefore, the excess staff have been retrenched. Though the Trust is not an industry within the meaning of Section 2(j) of the Industrial Disputes Act, 1947 by abundant caution the Trust has paid retrenchment compensation to each petitioner. He has submitted that the retrenchment has been effected in order of seniority. The junior employees have been retrenched first....
(emphasis supplied)
3. Learned senior advocate appearing for the temple trust submitted that if it was the case of the temple trust, right from the beginning, at the time of hearing Special Civil Application No.3931 of 2004 with Special Civil Application No.3667 of 2004, there was no question of giving up that contention and in any event, the statement made by the learned advocate appearing for the temple trust should not be construed to mean that the learned advocate has agreed to a position that the temple trust is an industry. Learned senior advocate for the temple trust submitted that in light of the well settled position of law that by agreement, parties cannot confer the jurisdiction on any forum/ court, the same should be extended to the facts of the present case.
3. Learned senior advocate for the temple trust submitted that the temple trust should be allowed to contest the findings recorded by the learned Judge of the Labour Court that, 'the temple trust is an industry'. He further submitted that if that contention is allowed, there is no prejudice caused to the workmen because both the sides will present their case the temple trust on one hand and workmen on the other hand, and the Court will examine the question and will consider whether the findings recorded by the learned judge of the Labour Court is in accordance with law or not.
4. Mr. Pathak, learned advocate appearing for the workmen submitted that once the trust agreed to go to the Labour Court and agreed to give no objection about the maintainability of the case before the Labour Court, it should be treated as final on the aspect that, 'the temple trust is an industry'.
Learned advocate for the workmen could not reply to a suggestion that whether any parties can confer jurisdiction on the Court/forum, by agreement.
5. In absence of any binding decision in support of submissions made by the learned advocate for the workmen, this Court is of the opinion that the statement made before the Division Bench cannot be construed to mean that the temple trust has given go-by to its stand that the temple trust is not an industry.
6. With the aforesaid observations, present Misc. Civil Application is allowed. It is made clear that it will be open for the parties to raise all contentions before the learned Single Judge who in turn will examine the legality and validity of the judgment and order passed by the learned judge of the Labour Court including the finding recorded to the effect that the temple trust is an industry.
(RAVI R.TRIPATHI, J.) (R.D.KOTHARI, J.) aruna To be referred to Reporter.
(RAVI R.TRIPATHI, J.) Page 5 of 5