Gujarat High Court
Bloom Dekor Limited vs Devidutt Upadhyay on 3 July, 2018
Author: A.S. Supehia
Bench: Harsha Devani, A.S. Supehia
C/LPA/757/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 757 of 2018
with
CIVIL APPLICATION NO. 1 of 2018
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BLOOM DEKOR LIMITED
Versus
DEVIDUTT UPADHYAY
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Appearance:
MR PALAK H THAKKAR(3455) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 1,2
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 03/07/2018
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE A.S. SUPEHIA)
1. The present appeal is directed against the order dated 27.2.2018 passed by the learned Single Judge in Special Civil Application No.4407 of 2015 rejecting the petition and awarding cost of Rs.5000/-.
2. The case of the present appellant is that the learned Single Judge has committed a patent error by ignoring the fact that the award dated 30.7.2007 impugned in the writ petition was an ex parte award and hence, the same being in violation of the principles of natural justice was required to be quashed and set aside as the appellant could not get an opportunity to defend its case. The learned advocate Mr. Palak H. Thakkar appearing on behalf of the appellant has submitted that due to Page 1 of 5 C/LPA/757/2018 ORDER negligence of the concerned advocate before the Labour Court, no one had represented the case of the present appellant and the Labour Court had passed an ex parte award, whereby the respondent No.1-workman has been reinstated with 25% back wages. The learned advocate has contended that in fact, the respondent No.1-workman was appointed on contractual basis and thereafter since his probation period was not extended, the appellant had terminated his services. He has also invited attention of the court to the appointment letter dated 6.12.1995 and the conditions incorporated therein. He has submitted that the probation period of the respondent No.1- workman was six months and thereafter, since his work was not required, his probation period was not extended and vide communication dated 3.1.1997 his services were terminated with immediate effect, viz. 3.1.1997. The same was the subject matter of an industrial dispute. The learned advocate has lastly contended that the conduct of the present appellant was not deliberate and hence, instead of reinstatement the appellant may be directed to pay appropriate compensation to the workman.
3. The learned advocate has placed reliance on a decision of Division Bench of this Court rendered in Jaya Raina v. Gujarat Livelihood Promotion Company Ltd and another, reported in 2015 LLR 193 for the proposition of law that after completion of period of probation if there is no order of confirmation, then on expiry of the same, service of such employee is to be treated as terminated. Reliance has also been placed by the learned advocate on the decision of the Apex Court rendered in the case of Kendriya Vidyalaya Sangathan and another v. S.C. Sharma, reported in (2005) Page 2 of 5 C/LPA/757/2018 ORDER 2 SCC 363, more particularly, the learned advocate laid emphasis on the observations made in paragraph 16, for the proposition of law that when the question of determining the the entitlement of a person for back wages is considered, the employee has to show that he was not gainfully employed.
4. In view of the aforesaid submissions the learned advocate has urged that the order passed by the learned Single Judge may be set aside and appropriate compensation may be awarded to the respondent No.1- workman.
5. We have perused the award passed by the Labour Court in Reference (LCA) No.1156 of 1999 and the order dated 27.2.2018 passed by the learned Single Judge. We have noted the observations made by the learned Single Judge signifying the conduct of the present appellant before the Labour Court. The present appellant was served with notice to answer the reference, but it had neither entered its appearance nor any one appeared on its behalf. It is also recorded that the Labour Court was compelled to decide the proceedings in absence of the appellant-company. It is also recorded that despite an intimation issued by the Labour Court no appearance was filed and order was passed below Exhibit-6 closing the stage of filing reply by the employer. Thereafter, the Labour Court recorded the deposition of the workman. Again an opportunity to conduct cross-examination was granted to the appellant- company. At that stage also no one appeared before the Labour Court to cross-examine the concerned workman. After granting sufficient opportunity to the appellant, the Labour Court passed an order below Exhibit-12 and closed the stage of cross-examination. Thereafter also it appears that the present Page 3 of 5 C/LPA/757/2018 ORDER appellant had neither put its appearance nor had appeared before the Labour Court to lead evidence. On 24.3.1999, the Labour Court passed ex parte award and ordered the present appellant to reinstate the employee on his original post with continuity of service and back wages.
6. Thereafter, a restoration application was filed by the appellant being Miscellaneous Application No.164 of 1999 in the reference and the Labour Court was pleased to set aside the ex parte award dated 24.3.1999 and restored the aforesaid Reference No.1039 of 1997 on its original file and ordered to proceed the same on merits, vide order dated 13.8.1999. After the Reference No.1039 of 1997 was restored to its original file it was given new number being Reference (LCA) No. 1156 of 1999. Thereafter also the present appellant, with utter disregard to the proceedings, did not appear before the Labour Court. Ultimately, the Labour Court was constrained to pass the award dated 30.7.2007 reinstating the present workman with 25% back wages.
7. On 25.9.2007 the appellant had filed Miscellaneous Application No.355 of 2007 for setting aside the ex parte award. The same was rejected by the Labour Court vide order dated 20.12.2014. It was the subject matter before the learned Single Judge. After recording such conduct of the present appellant, the learned Single Judge by the impugned order dated 27.2.2018 dismissed with petition with cost of Rs.5000/-.
8. The foregoing notings and the observations would suggest that the present appellant had utter disregard and scant respect to the proceedings of the Labour Court. Ample Page 4 of 5 C/LPA/757/2018 ORDER opportunity was given to the appellant to attend the proceedings and lead evidence, but the same were totally ignored. In our considered opinion the conduct of the present appellant before the Labour Court defeats the very purpose of filing the petition as well as the present letters patent appeal.
9. As regards the contention raised by the learned advocate that the present appellant had suffered because of the inaction of the advocate engaged by them before the Labour Court, hence, lenient view may be taken, it may be apposite to note that we have perused the writ petition filed by the present appellant, we have also gone through the pleadings of the said writ petition and on perusal of the same it indicates that no such contention of absence of advocate has been raised by the present appellant-original petitioner in its writ petition. Thus, an absolutely a new ground has been raised before us. Hence, such contention raised before us does not merit acceptance.
10. In view of the afore noted observations, the letters patent appeal fails and thus, is hereby accordingly dismissed.
11. The civil application stands dismissed in consequence of dismissal of the letters patent appeal.
(HARSHA DEVANI, J) (A. S. SUPEHIA, J) karim Page 5 of 5